Bobby N. Harmon, CPCU, ARM
10951 Southgate Manor Drive, Apt. #4 Tel & Fax No. (502) 964-0694
Louisville, Kentucky 40229-1655
March 9, 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:
This responds to your letter of March 8, 2004, in which you write:
“This is a response to your letter of February 27, 2004 addressed to my attention. Kamehameha School and P&C Insurance Co., Inc., are not responsible for the costs you incur in the arbitration brought by the Trustee Mary Lou Woo of your bankruptcy estate against you and your wife. Kamehameha School and P&C Insurance Co., Inc., are not obligated to defend or indemnify you for any of the fees, damages or costs you incur in the arbitration brought by the Trustee against you and your wife.
“By this letter Kamehameha School and P&C Insurance Co., Inc., informs the American Arbitration Association that Kamehameha School and P&C Insurance Co., Inc., is not responsible for and will not pay any amount reflected in the invoice that you attached to your letter or any other invoice that is issued by AAA. The responsibility and obligation for that invoice is your personal responsibility and obligation. There is no agreement or understanding between Kamehameha Schools and/or P&C Insurance Co., Inc., with Mr. Harmon to provide him a defense or to hold him harmless of any claim brought against him by any third-party.”
Your response is clearly inadequate and inappropriate for the following reasons:
First, in my letter of February 27, 2004, I simply asked you to forward the invoices to P&C Insurance Company’s authorized, independent insurance adjuster for payment. I did not ask Kamehameha Schools or P&C Insurance Company to pay these costs directly from their general funds.
Second, as you are not representing the insurance carrier for Kamehameha Schools and P&C Insurance Company, Inc., you do not have the authority to decline my tender of defense. As I wrote to you in my letter dated February 25, 2004:
“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....
“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....”
Third, I would point out that you have never provided any evidence that your firm was properly authorized to act on behalf of Federal Insurance Company or the former Trustees of Kamehameha Schools Bishop Estate in the settlement negotiations which resulted in the Settlement Agreement which is the subject of the current arbitration.
In fact, your unsupported claim that you were representing these entities was cited as a cause of action in my RICO lawsuit, from which I quote as follows:
e) Defendant Torkildson, Katz, Fonseca, Jaffe, Moore & Hetherington (Torkildson, Katz) is a law corporation conducting business in the State of Hawaii.
1. In a letter dated January 30, 1997, Robert S. Katz, Esq. of Torkildson, Katz, wrote regarding Plaintiff's Wrongful Termination Settlement Proposal:
"I have been retained by Kamehameha Schools Bishop Estate ("KSBE") to assist and advise it in connection with your December 29, 1996 settlement proposal in the above referenced matter. Due to the extent and complexity of your settlement proposal, it will not be possible for KSBE to respond by your requested date of January 31, 1997. . . Although I cannot provide you with a specific date, I wish to assure you that every effort will be made to provide a reasonably prompt response to your settlement proposal....
In Plaintiff's response to Katz, dated February 2, 1997, he stated:
". . . I find it difficult to accept your explanation that it was due to the 'extent and complexity of my proposal' that it was not possible for KSBE to respond to my settlement proposal by the January 31, 1997 deadline, or even to provide me with a specific date for a response . . .
"Your letter does not disclose other information which is important in my responses to you and in my pursuit of these claims:
1. You state that you have been retained by Kamehameha Schools Bishop Estate. You do not indicate that you are also representing P&C Insurance Company, Inc. (P&C). Does this mean that your comments regarding disclosure of confidential information, etc. apply only to KSBE documents? Could you please provide me a copy of your retention letter in order to confirm your appointment.
2. Could you please clarify your statement that you have been retained by KSBE 'to assist and advise it' in connection with my claims. Does the scope of your responsibilities extend to actual settlement negotiations?
3. Has your engagement by KSBE been approved by the insurance carrier(s). If so, may I please have a copy of any letter evidencing this fact....”
"Although the deadline for acceptance of my settlement proposal has passed, I am still hopeful that KSBE and P&C, and their insurance carriers, are willing to enter into meaningful settlement negotiations in order to avoid litigation. However, these negotiations must be in earnest and begin immediately if we are to make any progress in settling this out-of-court."
Copies of this letter were sent to Henry Peters, Richard Wong, Lokelani Lindsey, Gerard Jervis, Oswald Stender, Sandie Wicklein, Michael Goolsby (Chubb Group), David Loo (John Mullen & Co.), and Pat Onogi, (Marsh & McLennan, Inc.).
In a letter dated February 7, 1997, Robert Katz stated:
"In response to your February 2, 1997 letter, I wish to advise you as follows.
“First our law firm is representing both P&C Insurance Company, Inc. and Kamehameha Schools Bishop Estate. For convenience I will refer to them collective as 'KSBE'. Our representation of KSBE would include settlement negotiations as deemed appropriate by KSBE. Finally, our representation of KSBE does not require approval by any insurance carrier."...
The only indicated copy of this letter was sent to Colleen I. Wong, Esq. There was no indication that Katz sent any copies to the trustees of KSBE, the officers and directors of P&C, or to any insurance carriers or their independent claims adjusters....
< END OF QUOTATION >
Similarly, I would point out that you have sent copies of your March 8, 2004, letter to only Clyde Mark, Louanne Kam, Esq., Steven Guttman, Esq., and Justin Schuck, AAA. However, you have not shown that copies were sent to the current or former Trustees of Kamehameha Schools, who were supposedly signatories to the Settlement Agreement, or to any Captive Manager, insurance carrier, or independent insurance Claims Administrator.
Despite repeated requests to my previous attorneys, and later to Trustee Mary Lou Woo and Steven Guttman (after my attorneys had dropped out), for any documentation whatsoever to prove that the representations being made by Torkildson, Katz, Fonseca, Moore & Hetherington were legitimate, no such documentation has ever been provided.
This is material to the current arbitration matter since several of my previous letters regarding this matter fall under the “letter writing campaign” issue contained in Trustee Mary Lou Woo’s Demand for Arbitration. For examples, I refer you to my letter dated October 26, 2000 addressed to Roy Hughes and Arnold Phillips (Complainant’s Exhibit 25); Steven Guttman’s letter dated December 14, 2000, to Bradley R. Tamm, Esq. (Complainant’s Exhibit 26); my letter of April 2, 2001, addressed to Steven Guttman (Complainant’s Exhibit 35); Steven Guttman’s letter of April 4, 2001, addressed to me (Complainant’s Exhibit 36); my letter of April 5, 2001, addressed to Steven Guttman (Complainant’s Exhibit 37); Steven Guttman’s letter of April 6, 2001, addressed to me (Complainant’s Exhibit 38); and my letter of April 18, 2001, addressed to Steven Guttman (Complainant’s Exhibit 39).
Since you still have not supplied any documentation to evidence that you are, in fact, authorized to act on behalf of any of your purported clients, or on behalf of any of their insurance companies, I again ask that you submit my previous Tender of Defense, and the AAA’s invoices, to Kamehameha Schools’ and P&C Insurance Company’s insurance carrier for their proper review and response.
I also repeat here my request that you provide to me, and to Trustee Mary Lou Woo, any Attorney of Record letters you may have from your purported clients in order that we may include them in our Exhibits for the referenced arbitration proceedings.
By copy of this letter to the American Arbitration Association, I hereby request that they do not accept the unsubstantiated statements made in your letter as being truthful or made in good faith.
Sincerely,
Bobby N. Harmon
cc’s: 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)
Clyde Mark, President, P&C Insurance Co., Inc. (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 RichardWong, 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)
Governor Linda Lingle, State of Hawaii (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)
Ralph F. Boyd, Jr., U.S. Dept. of Justice (via fax only @ 202-514-1116)
PricewaterhouseCoopers, c/o Warren Price III, Esq. (via fax @ 808-533-0549)
Marsh & McLennan, Honolulu Office (via fax @ 808-585-3510)
Terry Mullen, CEO/Pres., John Mullen & Co. (via fax @ 808-531-0053)
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