- 9 - settlement, we would be required to consider any allocation in the settlement agreement and/or the intent of the payors, to determine whether the payment was made on account of personal injuries or sickness. See Bagley v. Commissioner, 105 T.C. 396, 406-408 (1995), affd. 121 F.3d 393 (8th Cir. 1997). Petitioner complains that respondent's opposition to petitioner's motion does not comply with Rule 121(d), which requires that supporting and opposing affidavits submitted with respect to a motion for summary judgment shall be made on personal knowledge and that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or filed therewith. Petitioner points out that respondent has submitted an affidavit executed by Gregory Luna, a Dupont legal assistant, that includes a reference to a settlement between petitioner and Dupont, but the settlement document is not attached to the affidavit. Petitioner is correct that the Luna affidavit is insufficient in this regard. Nevertheless, respondent did provide the Court with a copy of the Dupont/Universal appeal and a copy of a distribution agreement executed by petitioner that purportedly show that petitioner ultimately received a payment from Dupont and Universal that is less than the amount of the judgment entered by the trial court. These documents suggest that petitioner entered into a settlement with Dupont and Universal. Counsel for petitioner was unable to definitively state that there was no settlement betweenPage: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011