Norman L. and Catherine J. Forste - Page 23

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          “[O]ne of the hallmarks of traditional tort liability is the                
          availability of a broad range of damages to compensate the                  
          plaintiff ‘fairly for injuries caused by the violation of his               
          legal rights.’”  Id. at 235.  Those damages include not only                
          compensatory damages, but damages that “redress intangible                  
          elements of injury”, e.g., emotional distress and pain and                  
          suffering.  Id. at 235-237.                                                 
               The initial letter from Mr. Forste’s attorney to DHS alleged           
          numerous causes of action, some of which sound in tort and others           
          of which involve nontort or contract rights.  The claims for                
          intentional and negligent infliction of emotional distress                  
          involve tort rights.17  Petitioners argue that the personal                 
          injuries in this case include emotional distress.                           
               The Small Business Job Protection Act of 1996 (SBJPA), Pub.            
          L. 104-188, sec. 1605(a), 110 Stat. 1838, amended section                   
          104(a)(2) to limit the exclusion to amounts received for personal           
          physical injuries or physical sickness.  However, that amendment            
          does not apply to any amount received under a written binding               
          agreement in effect on September 13, 1995.  SBJPA sec.                      

               17For purposes of determining whether the underlying causes            
          of action involve tort or tort type rights, we look to State law.           
          Pipitone v. United States, 180 F.3d 859, 862 (7th Cir. 1999);               
          Bland v. Commissioner, T.C. Memo. 2000-98.  To that end,                    
          California recognizes tort causes of action for both intentional            
          infliction of emotional distress, see Cervantez v. J.C. Penney              
          Co., 595 P.2d 975 (Cal. 1979), and negligent infliction of                  
          emotional distress, see Marlene F. v. Affiliated Psychiatric Med.           
          Clinic, Inc., 770 P.2d 278 (Cal. 1989).                                     





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