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initiate any factual inquiry as to the validity of an IIED claim.
The record is silent about whether the parties negotiated the
release of any specific tort claim.
It does not appear that there was a quid pro quo for release
of any tort or personal injury claim. In addition, it does not
appear that the parties engaged in good faith, adversarial,
arm’s-length negotiations relating to the personal injury clause.
Winston was not motivated to resist the inclusion of a personal
injury clause, and it had nothing to lose by agreeing to the
clause. The clause did not obligate Winston to make additional
monetary payments to petitioner in excess of the original offer.
Before petitioner proposed the change to clause 2(b), personal
injury claims were already included in the general release
section of the draft agreement. In effect nothing changed other
than Winston’s agreement to some wording concerning personal
injuries. Winston merely agreed to a more specifically worded
personal injury release and to reallocate a portion of the same
monetary payment that was on the table for more than 2 years.
Winston did not admit any wrongdoing and was substantively in the
same position it would have been if it did not agree to the
change.9
9 It is also likely that the changes in the final agreement
were not intended to have any different effect on Winston’s
financial or tax reporting from those that would have resulted
had petitioner accepted Winston’s initial offers.
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