OUST v. Harmon - Questions regarding Final Judgment Notice

Bobby N. Harmon, CPCU, ARM

August 25, 2006

VIA fax and e-mail: sguttman@kdubm.com

Curtis Ching, Gayle Lau and James Nicholson
Office of the United States Trustee

c/o Steven Guttman, Esq. Kessner Duca Umebayashi, et al.

220 S. King Street, Floor 10

Honolulu, HI 96813

Gentlemen:

Re: CV 05-00030 - James B. Nicholson, Successor Trustee vs. Harmon

FINAL JUDGMENT; NOTICE OF ENTRY OF FINAL JUDGMENT

This is to inform you that I have received copies of the Final Judgment and Notice of Final Judgment (undated and unsigned), and that I have several questions regarding the materials that I am to remove from the web-site. Basically, these involve the process of identifying those pages containing “all offensive materials which contains any reference to ‘Protected Subject Matters’, as that term is described and defined in the Arbitration Award dated October 6, 2004.”

To quote from the Application by Plaintiff Trustee Mary Lou Woo for Confirmation of Arbitration Award, as ordered by Arbitrator Judith Neustadter Fuqua, and filed in the U.S. District Court on January 13, 2005:

e. Defendant’s letter writing campaign constitutes a breach of the covenant of good faith and fair dealing and Defendant is enjoined from writing such letters to the Trustee, her counsel, the parties to the Agreement and their employees, representatives and others.

17. In accordance with her findings and conclusions, the Arbitrator entered an award that bars any violation of the Settlement Agreement and the Award. The Award provides that Defendant cannot:

a. Mail, fax, email, or in any other manner send or issue any correspondence of any type which mentions, discusses, or refers to a “Protected Subject Matter” to any individual or entity other than Trustee’s counsel, Steven Guttman, Esq., and the AAA; and

b. Disclose, discuss, disseminate, or communicate, by any means whatsoever, including by posting on a website, a “Protected Subject Matter” to any individual or entity.

18. “Protected Subject Matter” as defined in the Award includes:

a. Any of the events and circumstances surrounding or occurring during Defendant’s employment at the Kamehameha Schools or in the performance of his duties at P&C Insurance.

b. Any fact or information discovered or learned by Defendant related in any way to the Kamehameha Schools or P&C Insurance as a result of his employment at the Kamehameha Schools or the performance of his duties at P&C Insurance;

c. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations set forth by Defendant in the underlying litigation;

d. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations which were settled and released by Defendant in the Settlement Agreement;

e. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations which relate in any way to the treatment of the settlement proceeds as wages and its tax consequences;

f. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations which relate in any way to perceived conflicts of interest among the attorneys who have entered appearances in the underlying litigation and any of the parties in said proceedings;

g. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations which relate in any way to the subject arbitration, including, but not limited to, the Arbitrator’s rulings and/or awards, the basis for those rulings and/or awards, and the arguments and statements made by the Trustee and Defendant in connection with the subject arbitration; and

h. Any of the claims, issues, and allegations and/or the basis for the claims, issues, and allegations which relate in any way to Defendant’s claims, or notices of claim, for a right to defense and indemnification from the Kamehameha Schools or its insurance carrier for any cost, expense, or damage incurred or awarded against Defendant in the subject arbitration.

19. Defendant was ordered to remove all material related to the “Protected Subject Matter” from the various websites that he had created and, furthermore, was prohibited from posting any protected material or information on any new website which may be created.

< END OF QUOTATION >

FIRST, the Award states that “Defendant’s letter writing campaign constitutes a breach of the covenant of good faith and fair dealing and Defendant is enjoined from writing such letters to the Trustee, her counsel, the parties to the Agreement and their employees, representatives and others (emphasis added).” Then she immediately follows that with the statement that: Defendant cannot mail, fax, email, or in any other manner send or issue any correspondence of any type which mentions, discusses, or refers to a ‘Protected Subject Matter’ to any individual or entity other than (emphasis added) Trustee’s counsel, Steven Guttman, Esq., and the AAA.” Besides being in clear violation of my First Amendment Rights, these two directives directly contradict each other, making it impossible for me to comply with either one without violating the other.

SECOND, the definition of “Protected Subject Matter” is so broadly worded, as I have stated in previous filings, that, if taken literally, would prohibit me from reporting any criminal acts or regulatory violations to the IRS, the FBI, the CIA, the SEC, Insurance Commissioners, the Department of Justice, or any other law enforcement or regulatory agency. To me, still, as a U.S. citizen, this violates my rights of free speech, and would be against public policy.

THIRD, paragraphs 18 c, d, e, f, and g all concern my reporting of insurance claims to various parties. As I had informed Trustee Mary Lou Woo many times before her unfortunate death, these claims being made - including claims against her and her attorney, Steven Guttman - were INSURANCE CLAIMS, and I was simply requesting that they REPORT these claims to their insurance carriers, as they are required to do under the terms of their professional liability insurance policies. With the exception of the insurance carrier for Greg Dunn and Bradley Tamm, I have NEVER received ANY communication from ANY insurance company responding to ANY of these many claims. The reasonable consequence of this non-response was that I was forced to send numerous follow-up letters, which the Trustee then wrongly labeled as a “letter-writing campaign.” Also, the Trustee could not act on behalf of any insurance company.

I also asked Ms. Woo, and her attorney, to provide me the names and addresses of their insurance brokers and carriers, and their policy numbers, policy periods and Claims Numbers, so that I could deal directly with the insurance carriers and their claims adjusters, thus eliminating any need for further involvement by Trustee Woo or her attorney. Again, I received NO response to ANY of these requests. In fact, to this date, I have NOT been provided ANY insurance information by the Arbitrator, the American Arbitration Association, the Office of the United States Trustee, any appointed Trustee or their attorneys, and I have NEVER been contacted by ANY authorized insurance claims adjuster for handling of these claims that I am being asked to pay nearly half a million dollars for merely reporting them.

Also, in accordance with Hawaii Insurance Statutes, insurance companies are required to promptly respond to insurance claims. This non-response to my claims by the insurance companies resulted in my having to write complaint letters to the Hawaii Insurance Commissioner’s office. Again, the Trustee mislabeled these complaint letters as part of an “offensive” letter-writing campaign. I still maintain, as I have stated in court filings, that I have every legal right to file Claims against any party that I believe may have wrongly harmed me, and that my signing of the Settlement Agreement in no way prohibited me from making future claims which might OCCUR - or be DISCOVERED - AFTER the Agreement was signed. The fact that the Settlement Agreement may have been obtained through fraud and misrepresentation was not DISCOVERED by me until several months after my signing, and it was only then that I began to question MY attorneys about the possible frauds involved. It was not until AFTER MY ATTORNEYS, and MY INSURANCE CARRIER (Island Insurance), wrongly dropped me as a client and policy holder, that I was forced to begin my futile letter-writing campaign for information regarding the apparent fraudulent Settlement Agreement, by writing directly to Trustee Woo and her attorney, and then directly to the parties involved.

“CLAIMS MADE” liability policies have specific contractual time requirements for reporting claims made against the insured. In fact, it was this failure of the legal department of Kamehameha Schools to report “sensitive” claims to their insurance carriers on a timely basis, that was the subject of contention in my RICO lawsuit and in EQ2048. If I had NOT reported these claims to these parties, or to their insurance companies, in a timely manner, then these insurance companies would have a legitimate excuse for later denying my claims on the basis that the statute of limitations had passed. Also, since these are “CLAIMS MADE” policies, the “trigger” to coverages for the insurance company is the date that the CLAIM is MADE - not the date of the “OCCURRENCE”.

The major DIRECT CAUSE of DAMAGES in this case, including court costs and legal fees, has been the FAILURE of Trustee Woo and her attorney, Steven Guttman; the Office of the U.S. Trustee; the American Arbitration Association; Kamehameha Schools and P&C Insurance Company, and their respective in-house and outside attorneys, to properly and timely file my reports of claims to their insurance carriers. Had these claims been properly reported, this would have prevented me from having to have had ANY further direct contact with ANY of these parties.

FOURTH, the fact that Trustee Mary Lou Woo passed away BEFORE this case was settled has denied me any possibility of subpoenaing her as a witness and obtaining her testimony, under oath, regarding the matters discussed above. This also raises questions about WHO is legally responsible, now that she has passed away, for the insurance claims that I made against her, her attorney, and the Office of the United States Trustee. Is it her Estate, or her attorney, or James B. Nicholson, Successor Trustee? If she had reported my claims to her insurance company, and the insurance company had promptly contacted me, then this question would not have arisen, as I would have been dealing directly with the insurance carrier and the fact that she passed away would not be an issue. Consequently, it is now ABSOLUTELY NECESSARY that I be advised of the names of all parties that are assuming Trustee Woo’s liabilities in this case and the names of their insurance companies, and that I be contacted immediately by their insurance companies to begin the claim settlement process.

FIFTH, in light of the above discussion and the complex nature of this case, I would suggest that we first attempt to reach a voluntary GLOBAL SETTLEMENT among all the various parties involved - and their insurance carriers. By proceeding in this manner, ALL PARTIES who might involved will have the opportunity to participate in the negotiations, and avoid the necessity of having to face the uncertainty of further claims in the future. If a global settlement cannot be reached by all parties, then you would still be free to pursue the Final Judgment.

SIXTH, if you still refuse any attempt to negotiate a settlement, then I wish to advise you that I am already in the process of deleting some pages in my website, amending others, and placing others in a password-protected site which will not be accessible to the public. The problem I am facing, however, lies in the fact that there are thousands of pages on the website and, due to the broad and questionable definition of “Protected Subject Matter” as discussed above, I still do not have a clear understanding of exactly what I am required, by law, to remove. Therefore, I respectfully ask that you provide to me:

1) A listing of all pages which you wish me to remove in their entirety;

2) A listing of all pages which you wish me to revise, or redact portions of, and a description of what changes I am to make in those pages;

3) The identities of all insurance brokers and insurance companies who represent any party involved in this case. Since I am being ordered not to contact these insurance companies myself, I ask that you, or the entities involved, follow-up with these parties-in-interest, and have the insurance companies’ licensed claims adjusters contact me directly.

Since I have only 10 days from the date of the signing of the Order to remove these pages, and provide the Court with written confirmation of removal, I must ask that you respond to this letter immediately. In the event you do not respond before the date that I am required to take these actions, then I will, of necessity, use my own best judgment as to what materials I must legally remove. Under these circumstances, however, I do NOT accept responsibility for the failure to remove any pages which may not be in agreement with YOUR interpretation of the definition of “Protected Subject Matter,” which was so ill-defined in the Arbitration Award, and which clearly violates my First Amendment Rights and gives opportunity to a legitimate appeal of the Judgment, and further costs and delays.

Very truly yours,

Bobby N. Harmon, CPCU, ARM

cc: Steven Jay Katzman, Office of the U.S. Trustee (via fax: 619-557-5339)