George G. Green - Page 23

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               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 petitioner              






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