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petitioner and Dupont. We are thus left with the uncertainty of
whether there was a settlement and the terms of the settlement if
there was one. Under the circumstances, we conclude that
petitioner is not entitled to summary judgment on the ground that
material facts remain in dispute.
Moreover, we would deny petitioner's motion even assuming
that petitioner did not enter into a settlement with Dupont and
Universal. In particular, we are not satisfied that petitioner
has proven that the underlying cause of action giving rise to the
jury's verdict in his favor is based exclusively upon "tort or
tort type rights", or that the damages were received "on account
of personal injuries or sickness". The civil complaint that
petitioner filed against Dupont and Universal includes a number
of causes of action, including tort type claims as well as a
warranty claim. Because the jury's verdict sheet indicates that
the jury held for petitioner with respect to his warranty claim
against Universal, we are unable to conclude at this time that
the underlying cause of action giving rise to the jury award is
based exclusively upon tort or tort type rights. Equally
important, an inference may be drawn that the disputed payment
was not made on account of petitioner's "personal injuries or
sickness". Significantly, the amount of damages determined by
the jury is remarkably similar to the damage estimate offered by
petitioner's expert during the civil trial--a damage estimate
that was based on the value of petitioner's lost inventory and
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