- 23 - “[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).Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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