Bobby N. Harmon, CPCU, ARM
Louisville, Kentucky 40229-1655
February 25, 2004
VIA fax only @ 808-523-6001
Mr. Matt Tsukazaki, Esq.
Torkildson, Katz, Fonseca, Moore & Hetherington
700 Bishop Street, 18th Floor
Honolulu, HI 96813-4187
RE: Mary Lou Woo, Trustee vs. Bobby N. Harmon
Demand for Arbitration - 74 166 00491 03 JUSC
Dear Mr. Tsukazaki [corrected]:
This responds to your letter of February 23, 2004, in which you state:
“We have received a copy of your letter of February 19, 2004, addressed to Clyde Mark, President of P&C Insurance Co., Inc., in care of Kamehameha Schools. We are responding to your letter on behalf of Kamehameha Schools, P&C Insurance and Mr. Mark.
“You are instructed that my firm and I are legal counsel for Kamehameha Schools and P&C Insurance concerning all current matters in which you are involved, and you are again instructed that any communication from you to either Kamehameha Schools or P&C Insurance must be sent to my office addressed to my attention. You are not to communicate directly with any Trustee, director, officer or employee of Kamehameha Schools and/or P&C Insurance. Our non-response to any of your letters does not change the fact that all of your communications to Kamehameha Schools and P&C Insurance, on any issue whatsoever, must be directed to my office.”...
First of all, my letter of February 19, 2004, to Clyde Mark was sent out of necessity, due to the fact that I was receiving no response from an authorized claims adjuster. My request to Mr. Mark in this letter was simply that he “have P&C’s current Captive Manager and/or Claims Administrator contact me immediately in order that I may answer any questions and provide further details, including the preliminary witness lists for Claimant and myself. Since witnesses for both Claimant and Respondent include employees of Kamehameha Schools, I am willing to provide copies of these witness lists, and other information, only to an independent claims adjuster who must establish a ‘China wall’ to prevent the exchange of confidential and privileged information between various opposing parties in this case.”
As I have stated in previous letters, I maintain that neither you nor Clyde Mark are independent claims adjusters acting on behalf of the professional liability insurance carrier for Kamehameha Schools and P&C Insurance Company. I consider your assertion that you are denying my tender of defense on behalf of their unnamed insurance company to be an act of bad faith and unfair dealing. I also would point out that under Hawaii Revised Statutes, Section 31: “... No person shall in this state act as or hold himself out to be a general agent, sub-agent, solicitor, or adjuster unless then licensed therefore by this state.”
Even if you were a licensed claims adjuster, which you are not, you would be conflicted in this matter for a number of reasons:
1. You and Kamehameha Schools’ employee Louanne Kam are named as witnesses for both the Claimant and the Respondent in these arbitration proceedings.
2. On December 12, 2003, I sent a Notice of Claim against Matt A. Tsukazaki, Robert Katz, Sabrina Toma and Torkildson Katz Fonseca Jaffe Moore & Hetherington “for racketeering, tax fraud, mail fraud, wire fraud, conspiracy to commit fraud, breach of attorney-client privilege, conflicts of interests, obstruction of justice, and other wrongful acts.” I believe Sabrina Toma may have left your firm and may now be employed by Kamehameha Schools. Although it has been over two months, I have not yet received a response to this Notice of Claim.
3. On December 12, 2003, I sent a Notice of Claim against the Trustees of Kamehameha Schools, Colleen Wong, Louanne Kam, Maryanne Inouye, Nathan Aipa, Clyde Mark, Rodney Park, their Attorneys and Independent Contractors, et al, for breach of contract, racketeering, tax fraud, mail fraud, conspiracy to commit fraud, breach of attorney-client privilege, conflicts of interests, obstruction of justice, and other wrongful acts. As an attorney for Kamehameha Schools, I believe you would also be included in this claim. Although it has been over two months, I have not yet received a response to this Notice of Claim from Kamehameha Schools’ insurance company.
It is my understanding of the Settlement Agreement that all disputes are to be submitted to arbitration. I would point out that neither Kamehameha Schools, P&C Insurance Company, nor Torkildson Katz are Complainants in the referenced arbitration matter. Since my “letter-writing campaign” is one of the issues to be decided in these proceedings, I would have expected that all three entities would have joined in the Trustee’s Demand for Arbitration if they felt they had a legitimate complaint to present to the arbitrator.
Another disputed issue to be decided in the instant arbitration is the question of the characterization of the settlement as wages and the issuance of IRS Forms W-2 and 1099-R by Kamehameha Schools and/or P&C Insurance Company. As you know, only the employer can issue these forms, and Trustee Mary Lou Woo is not the employer, nor the employer’s representative, in this case. Therefore, I would have again thought that if Kamehameha or P&C were contesting this wage issue, they would have entered into this arbitration as Complainants.
In your letter you state, “If you do not cease in your harassment of Kamehameha Schools and P&C Insurance by asking over and over the same questions, we will initiate separate proceedings against you to stop the continued harassment.” I do not consider submitting Notices of Claims, and then having to question why a proper response has not been received, to be “continued harassment.” Rather, I consider your statement to be a form of intimidation in an attempt to persuade me to drop my claims against Kamehameha Schools, P&C Insurance Company, Susan Tius, Steven Guttman, Marr Hipp Jones & Pepper, Torkildson Katz, and others. It is clear to me that your threat to “initiate separate proceedings” is yet another act of bad faith and unfair dealing.
I am not responding to the other arguments in your letter since you are not a licensed adjuster and due to the conflicts-of-interests that I have described above. Also, you have not presented evidence that you have been retained or approved by the insurance carrier for Kamehameha Schools or P&C Insurance Company, either in current case or in the original case which resulted in the Settlement Agreement being arbitrated. Instead, I am demanding that my tender of defense be promptly submitted to their insurance carrier for proper handling. Once I have been contacted by their authorized, licensed, independent adjuster, I will provide him with further information regarding this case.
Your immediate attention to this matter will be appreciated.
Sincerely,
Bobby N. Harmon
cc’s: Clyde Mark, President, P&C Insurance Co., Inc. (via fax only @ 808-523-6313)
Justin Schuck, American Arbitration Association (via fax only @ 559-490-1919)
Steven Guttman, Attorney for Mary Lou Woo (via fax only @ 808-529-7177)
Robert Kihune, Douglas Ing, Constance Lau, Diane Plotts, Nainoa Thompson,
Trustees of Kamehameha Schools (via fax only @ 808-523-6313)
Dee Jay Mailer, CEO, Kamehameha Schools (via fax only @ 808-523-6313)
Susan Tius, Esq., c/o Rush Moore Craven Sutton Morry & Beh
(via fax only @ 808-521-0597)
Gerard Jervis, Lokelani Lindsey, Henry Peters, Oswald Stender, and Richard Wong, c/o Kenneth Hipp, Esq., Marr Hipp Jones & Pepper
(via fax only @ 808-536-6700)
Jeffrey H.K. Sia, Esq., Ayabe Chong Nishimoto Sia & Nakamura
(via fax only @ 808-526-3491)
Robert S. Tameler, ALPS, Claims Administrator for Bradley Tamm and Greg Dunn (via fax only @ 406-728-7416)
Michael F. Perlis, Esq., Stroock & Stroock & Lavan, LLP, Attorney for Federal Insurance Company (via fax only @ 310-556-5959)
Lori Chung, Aon Insurance Managers (via fax only @ 808-540-4301)
XL Insurance (Bermuda) Ltd. (via fax only @ 441-296-4352)
Casimer Fidele, Tradewind Insurance Company (via fax only @ 808-521-7489)
Hugh Jones, Deputy Attorney General (via fax only @ 808-586-1239)
Dr. Randy Roth, Office of the Governor (via fax only @ 808-586-0006)
J.P. Schmidt, Hawaii Insurance Commissioner (via fax only @ 808-586-2806)
Janet Hughes, Internal Revenue Service (via fax only @ 303-844-3596)
Billy Beaver, Pension & Welfare Benefit Admin. (via fax only @ 626-229-1098)
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