Phillip Lee Allen and Carolyn F. Allen - Page 20




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          in an attempt to settle the case in Appeals.  Petitioners’                    
          contention is based on their understanding of the controversy and             
          the factual development of the case at the time of the Appeals                
          conference.  Petitioners argue that they made a good faith effort             
          to settle and thereby exhausted their administrative remedies.                
               Respondent’s contentions that petitioner should have                     
          provided Appeals with more information can be divided into two                
          general categories:  (1) Information already in petitioners’                  
          possession concerning the damage to their residence, and (2)                  
          information concerning the insurance company’s intent not to pay              
          petitioners for punitive damages.  Initially, we consider the                 
          first category of information available to petitioners that was               
          not provided to the Appeals officer.                                          
               In connection with their claim against the insurance                     
          company, petitioners obtained two engineering reports concerning              
          the damage to the subsoil and to petitioners’ residence.  Those               
          reports were not provided to the Appeals officer, but they were               
          presented at trial in order to support petitioners’ position                  
          regarding the repairs to the residence.  Although the reports                 
          provided some support for petitioners’ contention that the                    
          repairs exceeded the insurance recovery, the reports would not                
          have resolved the issue being considered by Appeals; i.e.,                    
          whether the settlement payment was paid to petitioners in                     
          satisfaction of their claim for punitive damages.                             






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