The Progress of this case will be followed from a
in chronological order with links to appropriate documents.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
Bryson City Division
WILLIAM C. HAMMEL, | MEMORANDUM IN
ALAN J. BELLAMENTE, | RESPONSE TO
et al., | DEFENDANTS'
| MEMORANDUM IN
Plaintiffs | RESPONSE TO
vs. | OBJECTIONS TO
| MEMORANDUM AND
STATE FARM MUTUAL AUTOMOBILE | RECOMMENDATION
INSURANCE CO., et al.; |
| No. 2:99CV-44-T
STATE FARM INDEMNITY COMPANY, |
et al. |
1) Now, Defendants, in a Memorandum dated May 10, 2000 oppose
Plaintiffs' Objections to the Magistrate's Memorandum and
Recommendation, that Plaintiffs be dismissed with prejudice.
2) Plaintiffs are truly sick and tired of Defendants' contumlies;
of being ridiculed for their pro se status, being similarly
declared, one way or another, to be incompetent idiots, who as
Defendants would have it, misapprehend all law and all reality,
when in fact, it is Defendants who have steadfastly refused to
acknowledge both the facts of the case, as well as the governing
law, citing cases that are misapplications of law, and now
attempting to revise the very history of this litigation.
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3) Almost all of these misapprehensions by Defendants have already
been addressed in legal and logical detail by Plaintiffs: their
citations of cases that are not binding on the 4th circuit have
4) Defendants seem to write legal documents in a manner all
too similar to the purported "medical reviews" of Dr. Fremed.
Untruths repeated over and over are supposed to convince
the Court, though evidence exists which contradicts them.
5) To say that this "Response" of Defendants is frivolous,
is to say the very least. It expresses their determination,
in the face of reality to the contrary, to transform this
matter into some simple insurance case which has been
allegedly settled. The facts do not support this position,
and never have.
6) Plaintiffs in their own style, will eschew Defendants
style of unwarranted and unsupportable glittering generalities,
and address expressions of Defendants' gratuitous, frivolous
and harassing Response. As in the past, Plaintiffs follow the
outline form of Defendants' Memorandum, in their rebuttal.
7) Even in page one, a relevant point of history, that Plaintiffs
submitted a "Motion to Amend" only because it was ordered
by the Magistrate, is omitted. This crucial event is ignored
and suppressed by Defendants, apparently in the hope that
if it is not mentioned, it will be forgotten by the Court.
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8) The referred to "Amended Complaint" does not yet exist since
it has never been filed. To apply rule 8(a) is mostly at the
discretion of the District Court supplementing its considerations
by other factors such as alleged facts, the complexity of the
alleged facts and claims as well as the merits of the claims,
as there are no limits stated in the rules, and there is no case
law that determines absolute limits, on the length of a complaint.
9) Considering the undue and permanent burden that Defendants have
placed on Plaintiffs' lives, and considering the relative
wealth and resources of Plaintiffs and Defendants, to claim
undue burden on Defendants that they should be required to
answer a complaint of length, which is, per force, of their own
making, is ludicrous.
10) Even in Plaintiffs submitted "proposed amended complaint",
each paragraph is answerable or avoidable since the required
specificity, as far as Plaintiffs are able, has been provided
regarding time, place and person.
11) In a short period of time, determined by Defendants and
Magistrate, Plaintiffs did produce, under great physical
hardship and expense, a "proposed amended complaint" which
has never been filed, and which Plaintiffs subsequently
withdrew for correction before the Magistrate's Recommendation
was filed. It is difficult to imagine that rule 8(a) may be
applied to a document that has never been filed, and on that
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basis that an entire case be dismissed, ignoring its merits
12) Defendants attempt, through twists, turns, and careful
omissions, to argue that this procedure is somehow proper,
when very clearly, it is not.
13) The first paragraph is a collection of half and
14) In their PIP releases, Plaintiffs did not grant State Farm
Indemnity Company (SFI) release for future torts; they certainly
released no other person of anything. The criminal torts alleged
by Plaintiffs begin at the time of their claims, and were not even
suspected by Plaintiffs until approximately a year later, months
after their claims were denied. There is indeed a period of
reliance contrary to Defendants' contentions. The commission
and conspiracies to commit criminal torts continued into the
the time of litigation. Most importantly, commissions and
conspiracies to commit further torts extended beyond the signing
of the PIP releases that are supposed to protect Defendants
through Res Judicata. This has been examined in excruciating
detail in Plaintiffs' Response (# 28).
15) Defendants have consistently refused to acknowledge, Plaintiffs
provable allegations, Cf. (# 28, and # 37), as well as the
recorded, binding and cited opinions of the 4th Circuit therein
that show Res Judicata not to be applicable.
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16) Plaintiffs, having signed the PIP releases in good faith,
have yet to be satisfied by the accord, and understand that
to be so would require yet another law suit in New Jersey.
17) Defendants seem to be of the strange opinion that because
the State of New Jersey simply does not recognize bad faith
for tortious actions in that State that Defendant SFI should
somehow not be held accountable for egregious and criminal
actions post-dating Plaintiffs' PIP releases, committed against
residents of North Carolina through conspiracy and actions by
State Farm Mutual, SFI's attorneys in New Jersey and SFI's
medical "hired gun", Dr. Eric L. Fremed.
18) Should Defendants' opinion be held valid, it would place all
insurers in the position of doing whatever it is they please,
regardless of egregiousness or criminality, and beyond being held
accountable under law. Plaintiffs leave the consequences of
that to be considered by the Court.
19) Shortly after Plaintiffs submitted their "proposed amended
complaint", SFI's Counsel in New Jersey, Melli Guerin & Melli,
approached Plaintiffs' Attorneys in New Jersey, apparently
believing them to be hidden Counsel behind the current Federal
litigation, asking directly or indirectly whether this was the
case and whether these Plaintiffs would drop this Federal suit
if they proffered the limits of the UIM policy. To Plaintiffs'
knowledge, no answer was ever given to this last question.
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20) Yet, the UIM limits were offered and Plaintiffs understood that
if those limits were not accepted, SFI could, through Counsel,
move to dismiss.
21) Plaintiffs signed these very limited releases, allowing that
further litigation under the UIM policies, and only that, would
be barred. Plaintiffs have agreed, and the limits of the policy,
after six years, has finally been paid. Copies of of these releases
are attached as exhibits 1 and 2.
22) Now, addressing Defendants' second paragraph of section B:
23) Defendants assert, "Thus, (1) it has been adjudicated that
Plaintiffs have no punitive damage claims, (2) Plaintiffs have
settled and released their PIP and bad faith claims, and (3) Plaintiffs
have settled and released the UIM claims. These settlements,
releases and stipulations of dismissal have resolved all claims
arising from Plaintiffs' insurance policy with State Farm
Indemnity and State Farm's handling of their insurance claims."
24) Regarding '(3)' of this assertion, Plaintiffs agree.
25) Regarding '(1)', Plaintiffs read a vast and convenient
simplification and even perversion of the truth.
26) What was adjudicated, at the time of Judge Harris's
Order, filed April 18, 1997 submitted here to this Court
as exhibit 3, is that under New Jersey's statutes
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and case law, a cause of action did not exist.
See exhibits of Plaintiffs' Objections (# 46).
27) That was then; this is now. Since that time, further
tortious and criminal acts have been committed by Defendants
against both Plaintiffs as residents of North Carolina.
These acts are not, and cannot be exculpated by that Order
of Judge Harris in New Jersey.
28) Moreover, as Plaintiffs have stressed before, this dismissal
was not based on merits, even at that time.
29) Regarding '(2)', Plaintiffs again read a vast and convenient
simplification and perversion of the truth.
30) The releases of UIM claims were, as previously stated for
those claims and for those those claims only.
31) Plaintiffs have not released any future claims for anything
32) The PIP releases themselves were secured by a fraud upon which
Plaintiffs relied to their detriment.
33) Regarding the last sentence of this section, quoted from
34) Plaintiffs' claims do not arise from acts that are governed
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by insurance law. This is a fact that Defendants have attempted
and still attempt to subvert, ignore, and deny explicitly and
implicitly by fabricated assumptions and subsequent tortuous
involutions of argument.
35) Bad faith is not a matter of insurance law; it is a matter of
contract law. Federal RICO has nothing to do with insurance
per se. Criminal torts connected through a pattern of racketeering
have been committed upon Plaintiffs as residents of North Carolina,
in a period longer than those committed on the same Plaintiffs as
residents of the State of New Jersey.
36) What insurance claims were made possible by the State
of New Jersey have now, indeed, been settled.
37) The egregiously criminal claims that supersede those claims
are far from being settled. Undisputable, is that egregiously
criminal acts committed by Defendants have been committed
after any agreement or release that may have been entered into
38) Plaintiffs have "recast" nothing. After periods of reliance
that "surely State law would provide relief" and that the
Defendants would understand the havoc that they have wrought,
Plaintiffs understand that the management of SFM from the
top down is the very definition of corruption, and that an
end must be put to that corruption as it saps the life blood
of our country's economy and existence. That "insurer fraud"
far outweighs "insurance fraud" is a fact for which Plaintiffs
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will supply ample proof.
39) To this point, Plaintiffs can produce expert witnesses at
40) Just who is misapprehending what?
41) Defendants' contentions are nothing but arrogant nonsense
masquerading as some kind of legal authority that can freely
ignore material facts.
42) Defendants contend in their second paragraph, "They [Plaintiffs]
seek to create a new cause of action under RICO for conduct
that was at issue in their prior litigation." This is completely
false, as Plaintiffs have alleged repeatedly and consistently,
starting, e.g., in their Response (# 28), 5), page 14, through
Objections (# 46), paragraphs 26-28.
43) Moreover, for Defendants to claim Res Judicata, asserting
falsehoods is not sufficient under North Carolina law; they
must prove sufficiency. Cf. Objections (# 46), paragraph 34.
44) In the sentence directly following that quoted above, Defendants',
referencing paragraphs 20 and 25 in Plaintiffs' Objections (# 46),
state, "They also appear to want to allege injury to, and proceed
on behalf of, 'The People of the United States of America' and
'the general public'.", asserting that such essential elements
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as reliance and proximate cause are absent.
45) The "American People" have reasonable expectations that insurance
is real, and they rely upon the insurance industry to provide the
insurance for which they pay. State Farm Mutual together with all
its incorporated wholly owned subsidiaries is indisputably the
largest insurer in the United States. When such an insurer routinely
denies claims made under devastating circumstances to the degree that
it does, to that degree those whose claims are denied suffer direct
and proximate injury to their business and property, often to the
point of becoming dependent upon US social agencies that compensate
for such an insurer's racketeering which has transformed the
legitimate business of insurance into an indifferent and rapacious
"profit making center" Cf. Plaintiffs' Memorandum (# 30).
46) The American People unknowingly and unwillingly pay for these
social services, while the insurer uses and derives profits
from the insured's premiums through a pattern of racketeering,
and also uses and derives profits from the money that it has
illegally withheld from its insureds. This is an admixture of
extortion and robbery.
47) Because most of the American People pay unknowingly, their injuries
have not even accrued.
48) Every time State Farm transfers its obligation to pay, to any
public assistance program it is stealing from every citizen
of the United States for its own unjust enrichment.
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49) As to the "general public", Objections (# 46), paragraph 25
in itself is clear and to the point.
50) Every time State Farm denies a legitimate claim, it leaves
helpless another injured member of the general public. This
certainly effects the "health of the general public", and
even affects interstate commerce.
51) In the sentence following, Defendants state: "They also
persist in denying the legal significance of the contract
of insurance that is the source of any claim they might
have had against Defendants (Objections paragraphs 9, 20),
seeking instead to conjure up a multiplicity of tort claims
out of a relationship governed by contract. This approach
was specifically disapproved by the Fourth Circuit in
Broussard v. Meineke Muffler Shops, Inc., 155 F.3d 331 346,
52) Defendants misapprehend and once again misapply the very
case that they cite.
53) Broussard is a complex class action suit brought by Franchisees
against Franchisors. The plaintiffs class action certification
was found invalid. These plaintiffs brought the action based on
contractual violations as well as independent torts claiming
the franchisor to be a fiduciary. It is this alleged fiduciary
relationship upon which the tort claims were based. While
the Broussard Court found no error with the contractual claims,
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it did so with the tort claims. The reasoning of the Court
is that there was, in fact, no fiduciary relation since Plaintiffs
and Defendants stood on equal ground and that neither had a
superior position within the contract.
54) Very clearly this is not the situation in the current litigation;
an insurer does, indeed, have a relationship as fiduciary to
its insureds, and therein lies the misapplication by Defendants.
55) In fact, the Court in Broussard at paragraph 73, referencing
the David and Goliath metaphor notes, "... size, as that
story teaches, is not a reliable indicator of strength or
influence. Nor is it what North Carolina Courts mean by
superiority. Only when one party figuratively holds all the
cards -- all the financial power or technical information,
for example -- have North Carolina Courts found that the
'special circumstance' of a fiduciary relationship has arisen."
56) Defendants have repeatedly cited Broussard on this issue of
tort claims; every one of them is a misapplication of case
law. Surely, Defendants' attorney knew or should have known
the actual issues in Broussard since it was, in fact, an
attorney in that case; in any case Broussard should never
have been cited by Defendants as an authority without actually
reading it, understanding it and taking in account the precise
points of law that were at issue in the Court's considerations.
57) Any dismissal of bad faith claims by the court in New Jersey
effects only acts committed before filing or alternatively
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before the Order of the Court. Plaintiffs' fundamental
causes of action arise from acts committed after that.
58) Fiduciary duties of the insurer persist into and in some
cases (White v. Western Title Co., 40 Cal 3d 870, Sup.
Ct. of Calif., December 31, 1965) beyond litigation as does
the duty of Good Faith.
59) Plaintiffs fundamental claims are based on acts that post-date
the New Jersey Court's dismissal of Bad Faith and punitive
damages. These claims are extracontractual in nature.
60) Although Plaintiffs have asserted claims prior to litigation,
they are mere background, asserted to lend credence to the
pattern of claims based upon alleged criminal acts that post-date
the dismissals of Bad Faith claims and also post-date the PIP
releases. Theses acts and timing have been alleged and are
provable by a preponderance of evidence. The Court may also
consider these claims in determining whether or not Plaintiffs
have sufficiently alleged a pattern of racketeering.
61) Plaintiffs have alleged, with good reason, that both the "policy"
and the PIP releases were entered into by Defendant SFI,
with fraudulent intent. Such contracts are not binding
62) Plaintiffs understand very well the significance and also
the insignificance of these fraudulent purported contracts,
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and have not conjured up but rather collected a multiplicity
of tort claims that are contractual as well as extracontractual
which arise from acts during litigation, and after litigation,
which is to say after the purported accords and satisfactions.
This has been repeatedly and consistently ignored by Defendants.
Fraud, extortion and robbery are not governed by any law of
contract; they are criminal acts. The "ostrich gambit" is not
a form of proper legal defense.
63) Regarding the last paragraph of this section C of Defendants'
Memorandum, Plaintiffs have never requested the indulgence
of the Court regarding the sufficiency of their pleadings,
nor do they expect indulgence in this respect. Any requested
indulgence, if it be indulgence, is consideration of their
physical disabilities and medically necessary treatments.
64) Defendants have repeatedly claimed, as some sort of mantra,
"Plaintiffs misapprehensions of fundamental legal concepts",
as well as misapprehension of almost everything under the
sun, while providing not even a hint as to where these
misapprehensions might lie, or providing legitimate citations
of case law where an error or legal argument has been
found. Defendants have regularly misapplied case law that
they have cited, and Plaintiffs have rigorously shown this.
Defendants have repeatedly refused to acknowledge the
understanding of Fourth Circuit regarding Res Judicata,
and repeatedly refuse to acknowledge Plaintiffs' actual
pleadings, while objecting in the form of glittering
generalities. Plaintiffs leave it to the Court to decide
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on the basis of filings, who misapprehends what.
65) Cognizable claims are present in Plaintiffs' pleadings,
in the alleged facts, facts which Defendants have only
addressed in attempts to make them mean something other
than what has been specifically stated.
66) A Plaintiff, pro se, is entitled, whether or not some attorneys
may view them as second class citizens before the Court, to
pursue a complex multiparty litigation that may have extensive
pleadings because the acts of the defendants have created the
complexity of the extensiveness. To the Court, Plaintiffs
apologize for this necessity; to the Defendants nothing more
can be said on this issue.
67) It is not the duty of Plaintiffs, in their pleadings, to
provide a framework within which a defense may be framed.
It may very well be that there is no defense. The duty
is to provide allegations which are, in principle, answerable,
and causes of action that are sufficiently plead so that
they may, at least, be argued, and subjected to scruntiy
before provable fact.
68) There is not very much point in whining about an Amended
Complaint that does not yet, per se, exist.
69) Contrary to Defendants' explicit assertion, Plaintiffs have not
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"filed" an Amended Complaint; they have "submitted" a "Proposed
Amended Complaint". Words do have meanings, a point which
Defendants seem to have forgotten frequently.
70) The necessity of a "continuance" is as follows: should the
Court decide today, Plaintiffs would not, together, be in
sufficiently good health to then attend to the consequent
necessities. How long the District Court will deliberate
in its de novo review is unknown to Plaintiffs.
71) Plaintiffs are in fragile conditions that are ultimately
the result of Defendants' actions.
72) What would be an appropriate consideration by the Court
should a plague descend upon an attorney's office? Should
represented Plaintiffs be caused to suffer? The analogies
and metaphors are clear.
73) Plaintiff Bellamente's spinal surgery did not go as smoothly
as was expected and his prognosis is uncertain. If for some
reason this procedure fails, a fusion at L1-L2 will become
necessary, a forth surgical intervention that would require
a longer period of convalescence. Moreover, he is currently be
treated for a respiratory infection apparently contracted while
in hospital for surgery. This is on advice of physicians.
The Court is at least now on sufficient notice that Plaintiffs'
enhanced and indeterminate disabilities exist.
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74) A legitimate opposition by rule, statute and precedent is to be
expected from Defendants. A pseudo-opposition, engineered through
trickery, deceptions, innuendoes and games of ignoration is improper
and not legitimate. Unwarranted game-playing, ad hominem and vague
attacks on Plaintiffs' purported "misapprehensions" are improper
responses to Plaintiffs' careful applications of existing law,
contrasted with Plaintiffs' careful analysis of Defendants'
misapplications and ignorations of existing law, as well as
ignoration of Plaintiffs' very allegations.
75) The continued misapplication by Defendants of binding precedent
and spurious applications of non-binding decisions are also,
in themselves, improper as attempts to confuse issues before
this Court. Cf. (#37 pp. 5, 7)
76) Defendants' oppositions are frivolous, arrogantly insulting
and harassing to Plaintiffs, causing them repeatedly to be burdened
themselves and to burden the Court with overly long analytical
pleadings such as this memorandum.
77) It is ridiculous that Plaintiffs should have to endure this
continuing "ostrich gambit" from Defendants.
78) This Response of Defendants to Plaintiffs' Objections is completely
typical of all Defendants' oppositions to Plaintiffs litigation.
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Plaintiffs, not defendants, are the ones who have actually
"bushwhacked through a thicket" of ill conceived pleadings by
Defendants in search of one legitimate opposition.
Cf., e.g., (# 37, p. 7); as Diogenes Laertius, they have failed
in their quest.
79) For Plaintiffs to be dismised, with prejudice, in this matter is
clearly inappropriate, in view of procedurally improper actions
of the magistrate, and the clear chicanery of Defendants.
80) THEREFORE, Plaintiffs pray the Court to consider the Response
of Defendants for exactly what it is: an exercise in the
improper practice of law.
This 16th day of May, 2000
William C. Hammel Alan J. Bellamente
A-11 Moose Branch Road, A-11 Moose Branch Road,
Sweetwater Apartments 1A, Sweetwater Apartments 8A,
Robbinsville, NC 28771 Robbinsville, NC 28771
(828) 479-1547 (828) 479-1547
William C. Hammel Alan J. Bellamente
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Uncivilization and its Discontents
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Created: August 10, 2000
Last Updated: August 10, 2000