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most likely that in awarding only $1 on the breach of contract
claim, the jury was simply following the trial judge’s
instructions to avoid awarding duplicate damages.3
As an alternative to their principal argument that the
entire $8.1 million of compensatory fraud damages was on account
of personal injuries, petitioners argue on supplemental brief
that these damages should be allocated between damages for
personal and nonpersonal injuries. In an attempt to align
themselves with the “unique facts” of Fabry,4 petitioners argue
that the Court of Appeals’ decision in Gregg v. U.S. Indus.,
Inc., 887 F.2d 1462 (11th Cir. 1989), must be read as limiting
petitioner’s economic damages on the fraudulent inducement claim
to no more than $5.6 million, thereby relegating $2.5 million of
the total $8.1 million fraud damages to noneconomic losses.
3 The jury instructions in the second jury trial stated:
You should consider the fraud claim and the breach
of contract claim as separate and distinct claims;
however, any damages you may award on one of these
claims may not be included in the damages on the other
claim.
4 In Fabry v. Commissioner, 223 F.3d at 1270, the Court of
Appeals noted that after the tortfeasor had paid the taxpayers
$3.3 million to restore the lost value of their “business qua
business * * * something intangible remained.” The Court of
Appeals concluded that under the “unique facts” of Fabry, the
additional $500,000 that was allocated to business reputation
represented compensation for this “something intangible”, which
the Court of Appeals concluded was for personal injuries. Id.
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Last modified: May 25, 2011