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Tort or Tort Type Rights
To be excludable under section 104(a)(2) and the first prong
of Schleier, the damages must have been received for “tort or
tort type rights.” The Supreme Court in United States v. Burke,
supra at 234, stated that, for purposes of section 102(a)(2)
analysis, a tort is a “‘civil wrong, other than breach of
contract, for which the court will provide a remedy in the form
of an action for damages.’” An action for damages is an
“essential characteristic” for a tort, as is “a broad range of
damages.” Id. at 235 (citation omitted).
To determine whether the damages were in fact received for
“tort or tort type rights,” the Court must look to “the nature of
the claim underlying” the settlement. Id. at 237. “For purposes
of section 104(a)(2), we look to state law in determining the
nature of the claim.” Pipitone v. United States, 180 F.3d 859,
862 (7th Cir. 1999) (citing Burnet v. Harmel, 287 U.S. 103, 110
(1932)).
Petitioner’s complaint against DaimlerChrysler was based on
sec. 4112.99 of the Ohio Revised Code and Ohio common law.5
Violations of Ohio’s civil rights statute are redressable through
a “civil action for damages, injunctive relief, or any other
appropriate relief.” Ohio Rev. Code Ann. sec. 4112.99
(LexisNexis 2001). Petitioner’s harassment claim is therefore
5No specific “Ohio common law” cases were identified.
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