Bobby N. Harmon, CPCU, ARM
Louisville, Kentucky 40229-1655
June 8, 2004
VIA fax only @ (559) 490-1919
Mr. James B. Farris
Senior Case Manager
American Arbitration Association
6795 North Palm Avenue, 2nd Ave.
Fresno, California 93704
RE: Mary Lou Woo, Trustee v. Bobby N. Harmon - Case No. 74 166 00491 03 JAFA
Dear Mr. Farris:
This is to continue my response to Steven Guttman’s letter to you dated June 7, 2004, in which he states:
“Pursuant to your requests of June 2, 2004, this letter responds to Mr. Harmon’s communications of May 31 and June 2, 2004 ....
“June 2, 2004 letters to Steven Guttman. As noted in my letter of June 1, 2004, the deadline set by the Arbitrator for either party to revise his or her Witness List was April 22, 2004. Furthermore, such revisions were limited to deleting, not adding, witnesses. For reasons unknown, Mr. Harmon elected to wait until the established deadline had long expired to aggressively pursue matters relating to his Witness List. Notwithstanding the fact that the Witness List issue was moot, I agreed as a courtesy to attempt to determine the names of those individuals to the Settlement Agreement with illegible signatures. Although we were aware of the communication from Lissa Andrews’ secretary referencing “Eugene Dominique” as signator for Federal Insurance Company, we were unable to verify with certainty that the signature was, in fact, that of Mr. Dominique and, therefore, did not make any representations regarding this matter. Also, to state the obvious, Mr. Harmon, being aware of the communication from Ms. Andrews’ secretary, could have timely listed Mr. Dominique as a witness but he made the election not to do so. There is no substance or validity to the argument being made by Mr. Harmon.
“The matters raised in Mr. Harmon’s ongoing correspondence parallel those presently before the Arbitrator in the parties’ summary judgment motions. Therefore, in response to the remaining matters discussed in Mr. Harmon’s June 2 letters, we direct his attention to the pleadings submitted by the Trustee in connection with the pending motions....”
Again, Mr. Guttman has addressed only one of the many issues raised in my two letters to him dated June 2, 2004. He then attempts to pass off the other matters as being parallel to “those presently before the Arbitrator in the parties’ summary judgment motions.” To illustrate the falsity and incompleteness of Mr. Guttman’s answers, I quote the following from the first of my two letters dated June 2:
“This is in response to your letter dated June 1, 2004, in which you state:
‘Inadvertently, the chart setting forth the names of the individuals who signed the Settlement Agreement omitted the name of one of the three individuals who signed on behalf of The Kamehameha Schools. The chart has been revised to reflect the fact that Mr. Robert K.U. Kihune also signed the Agreement. The revised chart is attached hereto.
‘As previously noted, the Trustee does not know the names of the individuals who signed the document on behalf of Marsh & McLennan and Federal Insurance Company.
‘In reference to the comment at the end of your letter dated May 29, 2004, regarding your Witness List, please note that the deadline for submission of your revised Witness List was April 22, 2003. While the Arbitrator allowed you latitude as to the naming of witnesses, the Witness Lists are fixed and no new names can be added by either side. The prospective witnesses you are allowed to call is set forth in the Arbitrator’s letter dated May 4, 2004.
‘I agreed as a courtesy to you to provide you with the names of those individuals whose signature is not readily legible and the information was available to the Trustee. We were not required to do so. Further, the names of the individuals who signed the Settlement Agreement is not germane to the issues presented in the Arbitration. I also note that if the information was truly important to you, there were procedures you could have followed to obtain the information. You elected not to do so.’
“To begin my response, I must state that I firmly disagree with the statement in your last paragraph that the names of the individuals who signed the Settlement Agreement is not germane to the issues presented in the Arbitration. All five issues deal in some manner with different interpretations of the Agreement. There were 15 signatories to the Agreement, and 8 attorneys. All parties who signed the Agreement were supposedly represented by counsel and supposedly had an understanding of the terms of the Agreement they were signing.
“In all my years in the insurance business, including the years I was president of P&C Insurance Company, I have never witnessed a case where any party was allowed to sign a Settlement Agreement, or any other type of contract or legal document, where the name of the Signatory was not typed or printed on the document. In many instances, the claims adjuster will require that the signature be notarized if the document is not signed in front of him, or if there is any question about the identity of the individual or the authenticity of the signature.
“You have stated before that a ‘common language’ interpretation of the Settlement Agreement will settle several of the issues described in your Complaint. My understanding of the ‘common language’ terms of the Agreement clearly differs from yours. Based upon my knowledge of ‘common language’ contracts, including insurance policies, the wording is supposed to be such that a ‘common person’ can clearly understand the meaning. In other words, one need not be an attorney, or have the advice of an attorney, to enter into a legal contract. The question in this case, then, would seem to come down to whether your legal interpretation of the ‘common language’ terms of the policy carry any more, or less, weight than my ‘common person’ interpretation. Furthermore, if there are differences in interpretation, how is one to know if other parties to the contract agree with one side or the other, if you do not know the identities of these other parties?
“Thank you for providing the identity of the third Kamehameha Schools trustee as Robert K.U. Kihune. As you know, Mr. Kihune was at the top of my original Witness List, and it is good to finally know, after all this time and many letters, that he was a signatory to the Agreement. Although this is a big step in the right direction, I still have some crucial questions. You have now identified the three signatories as interim trustees Francis Keala, Robert K.U. Kihune, and Ronald D. Libkuman. Although I can identify Mr. Keala’s signature, I still cannot distinguish which of the signatures belong to the other two trustees. Could you please identify which party’s signature is which. I would also like to know who provided you these identities, and how you verified this information.
“Regarding your comment that the names of the individuals who signed the Settlement Agreement is not germane to the issues presented in the Arbitration, I respectfully disagree. First, all five issues arise from differing interpretations of the Agreement. What if these unidentified parties were to agree with my interpretation, rather than with Matt Tsukazaki’s and yours? Would it not be germane to the issues if they wanted the opportunity to participate in these hearings? Have you even notified them of these proceedings and asked if they wished to participate? And if, as you claim, you do not know the identities of these parties, how did you go about notifying them?
“You have stated in your letters that the Trustee does not know the names of the individuals who signed the document on behalf of Marsh & McLennan and Federal Insurance Company - two of the most prominent defendants in my RICO lawsuit. Although you say that you ‘agreed as a courtesy’ to me to provide me with the names of those individuals whose signature is not readily legible and the information was available to the Trustee, you were not ‘required’ to do so. Although Ms. Neustadter did not state this in her letter, I believe I recall that in our telephone conference on May 25, 2004, she did say that you should make a good faith effort to identify these persons.
“Looking back at your own Exhibits, I find it evident that you have not, at best, made a reasonable effort to determine the identities of these individuals; or, at worst, you have made a false statement. Relating to this issue, I refer you first to Claimant’s Exhibit 8 which is a letter from Lisa Andrews, Esq., of Tam, O’Connor, Henderson, Taira & Yamauchi, who writes, in part:
‘We represent Federal Insurance Company (‘Federal’) in connection with the above-captioned matter. Federal was dismissed from this lawsuit pursuant to Judge David A. Ezra’s Order, entered August 9, 1999 (the ‘Order’)....
‘On October 13, 1999, Plaintiff and his wife filed a Chapter 7 Petition in U.S. Bankruptcy Court. On October 28, 1999, Defendant P&C filed a Notice of Bankruptcy Filing by Plaintiff in this action. The Court’s docket sheet indicates that the filing of this Notice stayed the action.
‘On November 1, 1999, you transmitted the proposed First Amended Verified Complaint to Mr. Sia. We have reviewed the proposed First Amended Verified Complaint, and note that Mr. Phillips drafted this document to include Federal as a defendant. The attempt to name Federal as a party defendant at this time is in violation of the Order. Pursuant to the Order, Plaintiff was given thirty days from August 9, 1999 to amend his complaint and to name Federal as a defendant. He did not do so; accordingly, Federal was dismissed with prejudice from this action on September 8, 1999.
‘Plaintiff has no cause of action against Federal. As you were recently appointed counsel for the Bankruptcy Trustee, we wanted to advise you of the foregoing and Federal’s position relative to the filing of a motion for leave to file the proposed First Amended Verified Complaint. If you have any questions relative to the foregoing, or if you intend to pursue the filing of the proposed First Amended Verified Complaint against Federal, please call me so that we can first discuss the matter further.’
“Despite the fact that Lissa H. Andrews, Esq. claimed in her letter to represent Federal Insurance Company in the RICO case, you will note that NO ATTORNEY signed off on the Settlement Agreement showing that they “APPROVED AS TO FORM”. Combined with the fact that the signature is illegible, this would again appear to be highly unprofessional conduct for an experienced attorney or claims adjuster.
“Claimant’s Exhibit 9 is a letter dated November 12, 1999, from Robert E. Miller, Esq., addressed to Arnold T. Phillips, Esq. and Steven Guttman, Esq. In this letter, Mr. Miller writes:
‘Our office represents ‘Marsh & McLennan Companies, Inc.’, we have previously appeared in the instant action and were dismissed out of the case via Judge Ezra’s order of August 9, 1999. The order makes clear that the dismissal is with prejudice if Mr. Harmon did not refile against our clients within thirty days of the order. Mr. Harmon failed to refile within the allotted time.
‘I recently reviewed a draft complaint which included our clients yet again. Please delete any reference to our clients, otherwise we will be compelled to pursue enforcing Judge Ezra’s order and will seek fees and costs for such a motion....’
“First of all, I wish to point out that this letter is marked “CONFIDENTIAL AND PRIVILEGED - ATTORNEY WORK PRODUCT.” Therefore, I would like to ask you if you have obtained the permission of Marsh & McLennan’s attorney Robert F. Miller, and my former attorney, Arnold Phillips, to release this confidential information. In fact, since Mr. Phillips was my attorney, would it not also be necessary for you to obtain MY PERMISSION for its release?
“As was the case with Federal Insurance Company, there is no signature by any attorney noting that the Agreement was ‘APPROVED AS TO FORM’. The question comes to mind again, ‘Why would a professional claims adjuster, or highly-respected attorney, permit this to happen?’
“I would also ask you, Mr. Guttman, as the responsible attorney, why you would file an incomplete Settlement Agreement with the Court without questioning the identities of all the signatories and their attorneys?
“For the above stated reasons, I must repeat that I disagree with your statement that the names of the individuals who signed the Settlement Agreement is not germane to the issues presented in the Arbitration. I would also ask if you have made a reasonable, good faith effort to determine the identities of these parties. For instance, have you contacted Lissa Andrews and Robert Miller, the attorneys for Federal Insurance Company and Marsh & McLennan, to see if their records show who signed the Agreement on behalf of their respective companies?
“In the last paragraph of your letter of June 1, you state, ‘I also note that if the information was truly important to you, there were procedures you could have followed to obtain the information. You elected not to do so.’ I do not know what procedures you may be referring to, but I would remind you that I no longer have an attorney, and living thousands of miles from Honolulu presents limited opportunity for me to run down to the court house to check court records which you should already have in your files. Besides, I would think that this information should be of as much importance to you and Trustee Woo, as to me – even more so since Trustee Woo has fiduciary responsibilities in this case, and you are the attorney responsible for the settlement and the filing of the documents for court approval.
“Since my ability to gather information has been limited in this situation, what I have done is to write to many of the attorneys that I know are related to this case, and have asked for information and Attorney of Record letters. It is because this information is truly important to me that I have pursued this matter so vigorously. So vigorously, in fact, that you have demanded this instant arbitration seeking to put a halt to my so-called ‘letter writing campaign’ and, I sincerely believe, my First Amendment rights to freedom of speech.
“Last, but not least, I find that your reply to my letter of May 29, 2004, has not addressed the following critical issues:
> You indicate that Robert S. Katz had signed the Agreement as attorney for P&C in the State Lawsuit and Agency Appeal. You do not mention the fact that no one signed the Settlement Agreement on behalf of Torkildson, Katz, Fonseca, Jaffe, Moore & Hetherington, who were Defendants in my RICO lawsuit, Civil No. 99-00304 - DAE. Yet, if you check your Claimant’s Exhibit 4 - Tab 40 - “Stipulation for Dismissal of Complaint as to All Claims and All Parties with Prejudice” - you will note that, although UNSIGNED on this particular copy, the Attorneys for Defendant TORKILDSON, KATZ, FONSECA, JAFFE MOORE & HETHERINGTON are shown as ROBERT S. KATZ and MATT A. TSUKAZAKI. Although I have brought this oversight to the attention of my prior attorneys, Roy Hughes, Arnold Phillips, Greg Dunn and Bradley Tamm, and to Matt Tsukazaki and yourself in several of my “letter writing campaign” letters, no one has yet admitted that this constitutes a major error and omission on the part of some, if not all, of these attorneys.
> You indicate that Kenneth B. Hipp signed as the attorney for Kamehameha Schools in the RICO lawsuit; yet your Exhibit 4 - Tab 40, states that they are the Attorney for Defendant HENRY H. PETERS, RICHARD S.H. WONG, LOKELANI LINDSEY, GERARD JERVIS AND OSWALD STENDER, TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP. As I have pointed out in many of my “letter writing campaign” letters, none these Defendants in my RICO lawsuit signed the Settlement Agreement. Also, for the SCOPE OF RELEASE AGREEMENT (Exhibit 4), Kenneth Hipp has NOT signed this document - on behalf of the former trustees or anyone. In fact, no one has signed this document on behalf of the former trustees. Furthermore, in a meeting with Kenneth B. Hipp prior to the bankruptcy proceedings, Mr. Hipp stated to me that he was representing the INTERIM TRUSTEES in the RICO matter, and NOT the former Trustees. He also represented that he was reporting to Nathan Aipa and Louanne Kam, who were also Defendants in my RICO lawsuit, which would be a definite conflict of interest if true. I continue to maintain that you and my former attorneys were negligent in not obtaining copies of Attorney of Record letters pertaining to the individual former Trustees, even after I had repeatedly brought this to your attention in my “letter writing campaign.” I have also filed an errors and omissions claim against Mr. Hipp and his firm for these oversights and misrepresentations. I continue to maintain that you need to identify who was representing these five individuals, and provide copies of Attorney of Record letters for each of them.
> You indicate that Nathan Aipa, Louanne K.L. Kam, Rodney Park, William S. Richardson, and Gilbert Tam signed as “Individual” Defendants in the RICO lawsuit. Yet, there is no mention in the “Stipulation for Dismissal of Complaint as to All Claims and All Parties with Prejudice” (your Exhibit 3 - Tab 40), or in the “Scope of Release Agreement” (your Exhibit 4), of any attorneys representing these individuals in my RICO lawsuit. This oversight has also been the subject of my previous ’letter writing campaign’. I continue to believe that you need to identify who was representing these five individuals, and provide copies of Attorney of Record letters for each of them.
“Consequently, I still do not believe that I have been given the proper opportunity to name all the critical Witnesses in this case, or to have access to information that is important and germane to the issues. In addition, I believe that most of these entities named above have, at one time or another, been recipients of one or more of my ‘letter writing campaign’ letters, making this information, and these individuals, germane to your Issue 5 – whether or not these persons are listed as Witnesses in these proceedings.”
A careful review of the above quoted letter will clearly prove that Mr. Guttman has NOT provided answers the majority of the critical issues raised, and that many of these issues do NOT “parallel those presently before the Arbitrator in the parties’ summary judgment motions.” For ease of reference, complete copies of my letters referenced above, and my various Motions in this case, can be found on the Internet at:
www.the-catbird-seat.net/HarmonArbitration.htm
Due to the false, misleading and incomplete statements contained in Steven Guttman’s letter dated June 7, 2004, I hereby request that the American Arbitration Association censure Claimant and dismiss her Demand for Arbitration.
Sincerely yours,
Bobby N. Harmon
cc: Mary Lou Woo, Trustee,
c/o Steven Guttman, Esq., Kessner Duca Umebayashi Bain & Matsunaga
(via fax only @ 808-529-7177)
Clyde Mark, Pres., P&C Insurance Co. (via fax @ 808-523-6313)
Dee Jay Mailer, CEO, Kamehameha Schools (via fax @ 808-523-6313)
Casimer Fidele, Island Insurance Co. (via fax @ 808-275-8726)
Federal Ins. Co., Claims Dept., Attn: W. Donaldson (via fax @ 213-833-5200)
Arnold T. Phillips, Esq., (via fax @ 808-528-5006)
Greg Dunn, Esq., & Bradley R. Tamm, Esq. (via fax @ 808-524-4844)
Governor Linda Lingle, State of Hawaii (via fax @ 808-586-0006)
J.P. Schmidt, Hawaii Insurance Commissioner (via fax @ 808-586-2806)
Hugh Jones, Deputy Attorney General (via fax @ 808-586-1477)
Janet S. Hughes, Manager, IRS (via fax @ 303-844-3596)
Peter B. Clark, U.S. Dept of Justice, Criminal Div. (via fax @ 202-514-7021)
Tai K. Lee, Special Agent, U.S. Dept of the Treasury (via fax @ 808-539-2810)
Mayor Alan Arakawa, County of Maui (via fax @ 808-270-7870)
Council of the County of Maui (via fax @ 808-270-7686)
Dr. Randall Roth (via e-mail: rroth@hawaii.edu )
Charles L. Goodwin, Special Agent in Charge, FBI, Honolulu Division
(via e-mail: HONOLULU@FBI.GOV )
Amy Campbell, State of New Jersey Commission of Investigation
(via e-mail: Hotline@sci.state.nj.us )
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