- 23 - Under paragraph 5, the State was to fund annuities for “additional damages associated with the Final Judgment” in the whistleblower lawsuit. Because the underlying cause of action giving rise to the recovery of damages was based on tort or tortlike rights, petitioner has met the first prong of the two-prong test set out in Commissioner v. Schleier, supra. However, petitioner has failed to show that, as he contends, the additional damages received under paragraph 5 of the settlement agreement were received on account of personal injuries or sickness. Although there is substantial evidence that petitioner suffered mental and physical deterioration between the time of the judgment in 1991 and the settlement in 1995, there is no allocation under paragraph 5 for any additional injuries. There is no allocation in paragraph 5 for any personal injuries or sickness that arose out of the whistleblower lawsuit, and all compensatory damages awarded in the final judgment of that lawsuit were expressly allocated under paragraph 4 of the settlement agreement. According to the testimony of Potter, who drafted the agreement for the State of Texas, there was no independent investigation in 1995 of either the jury findings in the original lawsuit or petitioner’s injuries. Potter had no knowledge of petitioner’s massive bleeding ulcers at the time that he and Augustine drafted the settlement agreement. Though petitionerPage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011