The Progress of this case will be followed from a
CASE DIARY
in chronological order with links to appropriate documents.
Also see the Amended Complaint
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
____________________________________________
|
WILLIAM C. HAMMEL, |
ALAN J. BELLAMENTE, |
et al., | COMPLAINT IN
|
Plaintiffs | CIVIL ACTION
|
vs. |
| No. 2:99-cv-44-T
STATE FARM MUTUAL AUTOMOBILE |
INSURANCE CO., |
STATE FARM INDEMNITY COMPANY, |
et al. |
|
Defendants |
|
___________________________________________|
SHORT CAPTION: HAMMEL v STATE FARM
PLAINTIFFS:
WILLIAM C. HAMMEL,
PRO SE
ALAN J. BELLAMENTE,
PRO SE
DEFENDANTS:
STATE FARM MUTUAL INSURANCE CO.,
its agents, servants and/or employees;
STATE FARM INDEMNITY CO., BLOOMINGTON, ILLINOIS
its agents, servants and/or employees,
and any other as yet undiscovered parties or entities,
related to this action, that may come to light in
subsequent discovery.
OTHER PARTIES THAT ARE NEITHER PLAINTIFFS NOR DEFENDANTS:
Plaintiffs complain also on behalf of other directly or
proximately injured parties, which injury or damage arises
from Defendants' tortious actions which made necessary certain
existing contractual agreements, to insure Plaintiffs' survival.
These parties are:
The Federal Government of the U. S.;
The Social Security Administration of The U. S.;
The Government of the State of North Carolina;
The Government of the County of Graham, North Carolina;
Donald A. Walton, of Rutherford, New Jersey;
Mountain Area Information Network, of North Carolina;
Plaintiffs' various healthcare givers who may have not been paid,
through the systematic pattern of racketeering activity
alleged herein;
Others whose proper payment were unnecessarily
delayed with exactly the same purpose and motive,
of which Plaintiffs complain herein;
as well as other unknown injured parties that
may yet be discovered.
These parties are included in accordance with the
provisions of FRCP Rule 71.
THE COMPLAINT, IT'S ARGUMENTS AND CONTENTS:
I. JURISDICTION paragraphs 1 - 10
II. VENUE paragraphs 11 - 13
III. STANDING AND
PLAINTIFFS'
RIGHT TO RELIEF paragraphs 14 - 17
IV. BACKGROUND AND
FACTS OF THE CASE paragraphs 18 - 86
V. LEGAL POSITION AND
SUMMARY
OF SPECIFICS paragraphs 87 - 92
VI. CAUSES OF ACTION paragraphs 93 - 101
VII. REGARDING THE
RACKETEERING
"ENTERPRISE" paragraph 102 - 102
VIII. RELIEF SOUGHT paragraphs 103 - 110
IX. DEMAND FOR JUDGMENT paragraph 111 - 111
X. PLAINTIFFS' AVERMENT paragraphs 112 - 114
A. Exhibit
B. Exhibit
I. JURISDICTION:
Plaintiffs aver on information and belief, and upon reasonable
investigation and research that Federal RICO laws 18 USC 1961-1968
do not frustrate the goals of any laws regulating insurance in either
the States of North Carolina or of New Jersey, and further that
The Western District Federal Court of The State of North Carolina
has jurisdiction in this matter:
1) Federal District court has jurisdiction by statute under
1. 18 USC 1964(a)
2. 28 USC 1331
3. 28 USC 1339
2) There is Diversity of Citizenship, 28 USC Sec. 1332
regarding the tortious actions alleged and violations of
18 USC 1962 (RICO), and 18 USC 1951 (Hobbs) by Defendants,
since continuity of these actions spans a time when Plaintiffs
lived in the State Of New Jersey until February 1996, and
thereafter in the State of North Carolina.
4) There is a further complete diversity of citizenship since the
Defendants' States of incorporation are the State of Illinois
and possibly New Jersey, while Plaintiffs are residents of the
State of North Carolina.
Plaintiffs' allegations are directly against State Farm
Indemnity, a wholly owned subsidiary of State Farm Mutual, and
therefore also against State Farm Mutual which does business in
many States of the United States; the home offices of State Farm
Mutual are in the State of Illinois, of which it is a citizen,
while State Farm Indemnity, upon information, belief and reasonable
investigation is licensed only by the State of New Jersey, and the
State of Illinois to do business only within those States, and
that it does business only or primarily within the State of New
Jersey.
5) The Parent company, State Farm Mutual does business in the State
of North Carolina and has representatives in The Western District
of North Carolina. On information and belief, State Farm Mutual
is a Foreign Corporation doing business in the State Of North
Carolina.
6) Based on the preceding, the allegations contained herein
constitute a matter which affects Interstate Commerce, and
presents a condition of "complete diversity of citizenship"; the
matter, therefore, falls within Federal Jurisdiction, and
specifically again under 18 USC 1951(b)(3) of the Hobbs Act.
7) Although there does exist a RICO provision in the North Carolina
General Statutes, GS 75D 1-14, which appears to be an elaboration
of 18 USC 1962, and explicitly prohibits the prohibited acts of
18 USC 1962, Plaintiffs cannot find such a cognate provision in
the State of New Jersey. From these circumstances and further
supporting documentation, it is the conclusion of Plaintiffs
that their appropriate pleadings would be unwelcome in the State
Courts of both New Jersey and of North Carolina.
All the preceding leaves the pursuit of justice possible only
within the jurisdiction of the Federal Western District Court
of North Carolina.
8) There is relevant Federal law regarding patterns of racketeering
activity, RICO, and specifically also with regard to
both mail and and wire fraud, 18 U.S.C 1341 and 18 U.S.C 1343
respectively, as well as extortion, (Hobbs). Therefore, The ERIE
doctrine is irrelevant, and the matters herein should be considered
only within the bounds of Federal Law.
9) The federal law of the preceding paragraph is not in any
"direct conflict" with any laws of the States of New Jersey
or North Carolina, and specifically it does not "invalidate,
impair, or supersede" any laws of these States which regulate
insurance. U.S. Sup. Ct. Humana v. Forsyth, Certiorari, for
9th Cir. No. 97-303.
10) The amount of controversy well exceeds the statutory sum
of $75,000.
II. VENUE:
The Western District Federal Court of North Carolina is the
only appropriate venue in this matter:
11) Plaintiffs reside, and have resided in Graham County,
North Carolina for longer than three (3) years; Graham
County lies within the Federal Western District of
North Carolina.
12) The Parent company, State Farm Mutual does business in the State
of North Carolina and has representatives in The Western District
of North Carolina.
13) Any change of venue to a different district, for
whatever reason, would cause such economic hardship, physical
distress and possible physical injury to plaintiffs so
that this case could not be litigated, and would negate,
utterly, the pursuit of justice.
III. STANDING AND PLAINTIFFS' RIGHT TO RELIEF:
The Plaintiffs have standing in this matter, and in the The Western
District Federal Court of North Carolina:
14) Plaintiffs reside, and have resided in Graham County,
North Carolina for longer than three (3) years; Graham
County lies within the Federal Western District of
North Carolina.
15) Plaintiffs had a written and signed auto insurance policy
X14107-A12-30
with State Farm Indemnity of New Jersey, a wholly owned
subsidiary of State Farm Mutual Insurance Company, against
which Plaintiffs now claim multiple causes of Federal action.
A properly filed claim with some of its documentation for an
MVA [September 16, 1994] in the State of Jersey was transferred,
at some indeterminate time from State Farm Indemnity
to State Farm Mutual in the State of North Carolina, without
Plaintiffs' request, knowledge or consent.
Plaintiffs' change of State residence was not a manoeuvre
for the purpose of creating a diversity, but was, in fact,
an action that was forced upon plaintiffs by the continued
malicious, prohibited acts of Defendants, and an action prudently
dictated by the threat of financial disembowelment, foreclosure,
loss of all income, and physical damages, all of which actually
came to pass, despite Plaintiffs efforts to avoid same.
16) This is a matter which devolves upon the interference by
Defendants, in legitimate interstate commerce through its
genuine pattern of racketeering activities.
17) Plaintiffs have been "stonewalled" by Defendants actions in denying
covered benefits, and delays, continuously since July 27,
1995, for no ascertainable reasons. In matters of performance
on PIP and UIM there are actions before the State Courts of
New Jersey in Bergen County, with docket numbers: BER L 8964-96,
and BER L 8465-96 where Defendants have continued to stonewall,
without legitimate reason, in every aspect of discovery:
1. failing in complete disclosure of pertinent documents
in their possession as demanded, by providing only
approximately 10% of what was available;
2. repeatedly avoiding depositions, even under Court Order;
3. avoiding additional depositions, even to this time.
Under Defendants' continuing deceit, abuse of process and
such malicious persecution, Plaintiffs wither and have been
left no choice but to seek justice within Federal Jurisdiction,
on grounds of Defendants' racketeering activities.
IV. BACKGROUND AND FACTS OF THE CASE
18) Plaintiffs together held the auto insurance policy
X14107-A12-30, with State Farm Indemnity of New Jersey.
19) Plaintiffs owned, jointly, but not as tenants in common,
a 1992 Mercury Grand Marquis automobile, bearing VIN
2MECM75WXNX660755, with valid New Jersey registration
plates "WH AB".
20) On September 16, 1994, at or about 10:00 PM EDST
Plaintiffs sustained physical injury as a result of a
rear-ending MVA, without fault of Plaintiffs. The
policy in 18) was paid up and in force at that time.
21) Plaintiff Bellamente was driving at the time of the MVA
of 20) and both Plaintiffs were wearing seatbelts as
prescribed by the State Laws of New Jersey.
22) Plaintiff Bellamente had almost completely recovered,
through conservative treatment, from an MVA which occurred
on August 6, 1992, in which he was not at fault.
23) The tortfeasor's insurance company in MVA of 20) quickly
paid the limit of his policy after Plaintiffs' surgeries,
against which Defendants have already subrogated.
24) As a result of the prior MVA of 21), Plaintiff Bellamente's
incapacity to work forced Plaintiff to close two video
rental stores, a loss that has never been properly compensated.
25) As a result of this incapacity to work, Plaintiff Bellamente
sold to Plaintiff Hammel, the remaining video retail
store. Because of the MVA referred to in 20) of this
section, two video retail stores had to be closed,
although no compensation of any kind was ever sought,
or had.
26) Plaintiff Hammel had never sustained injury from any MVA,
and has never claimed injury for such, until the MVA of
September 16, 1994.
27) As a result of the MVA referenced in 21) of this section,
and Plaintiff Bellamente's incapacity to to work during
the period of recuperation, it was necessary for Plaintiff
Hammel to purchase and operate the business, with help from
Bellamente as he could give it. The business was run as a
d.b.a.
28) From about 1981, Plaintiff Hammel was a computer consultant,
systems analyst and programmer for law firms specializing in
tort law, and continued in this capacity until September 1995,
when worsening physical condition prevented it.
29) The MVA caused immediate problems for Plaintiff Bellamente
who was immediately taken to Holy Cross Hospital
by ambulance. Plaintiffs believe that at that time
no spinal cord injury was diagnosed, and that cervical
spasm was noted. The diagnosis was cervical
sprain. He declined medications, and was released.
30) Plaintiff Hammel followed and retrieved Plaintiff Bellamente
from the hospital that night of September 16, 1994,
since the automobile was still in drivable condition.
31) After retrieving Plaintiff Bellamente from the hospital,
Plaintiff Hammel began experiencing spasm of both lower
back and neck.
32) On the morning of September 17, 1994 Plaintiff Hammel
was barely able to get out of bed.
33) Both Plaintiffs saw Peter Boulukos, D.C., the following
morning. Dr. Boulukos took X-rays and began treatment
for what was considered, at that time, minor injuries.
34) All papers and reports for claim with Defendants were
filed in a timely way. The claim number is 30-3204-312.
35) Prior to the 09/16/94 MVA of 20), both Plaintiffs were in
excellent physical health and in good physical condition.
36) Prior to the 09/16/94 MVA of 20), both Plaintiffs were in
prospering businesses.
37) On information and belief, Defendants have not fully
paid for conservative treatment for injuries sustained,
from September 17, 1994 through about July 26, 1995.
38) From the summary denial of all medical benefits on or
about July 26, 1995, no request was made by defendants
for an IME until the request for an IME in a letter from
Defendants dated September 21, 1995.
39) On November 6, 1995, Plaintiff Hammel went to his
Internist, Paul S. Sender, M.D. as a result of a sudden
onset of heart palpitations while in a state of severe
anxiety. An immediate EKG revealed a newly present Left
Bundle Branch Block (LBBB).
1. Plaintiff had had no illnesses of any kind
immediately prior to this, or at this time.
2. The first prescription of Klonopin was given at
that time for "severe anxiety". Elevated BP
and pulse rate were noted.
3. Dr. Donald Carringer, Robbinsville NC ordered a
Cardiac halter for possible bradycardia, which
tests positive. He referred Plaintiff Hammel to
Dr. A. Earl Haddock at Harris Regional Hospital.
4. Dr. Haddock, chief cardiologist at Harris Regional
Hospital, Sylva NC performed a thallium stress test
which revealed decreased left cardiac throughput.
October 30, 1997.
5. Heart Catheterization was performed by Dr. Hanich at
Mission Memorial Hospital in Asheville on
November 7, 1997 which revealed no infarction and
only insignificant arterial narrowing.
40) The various acts forming a pattern of racketeering
extending from about July 26 1995, to December 4, 1995
are described in the two complaints that were submitted
to the New Jersey Department of Insurance Consumer
Complaints, (NJDICC) submitted as Attachments A and B.
The specific acts were:
1. The repeated switching of claims adjusters.
2. The repeated losses of documents
3. The repeated inabilities to find "the file".
4. The repeated failures of callbacks
5. The complete ignoration of medical reports of
serious nature.
6. The repeated delays in every aspect of claims
handling.
7. Mendacity regarding medical statements.
8. The complete ignoration of Plaintiffs'
communications regarding this mendacity.
9. The assignment of physicians who were known
to render reports that were in the company's
favor, and whose actual examinations were
almost nonexistent.
10. Arrogance and abusiveness toward Plaintiffs.
11. Continuous insistence on the validity of Defendants'
maintained, arbitrary and insubstantially based
denial of all medical benefits, contrary to medical
fact.
12. A reckless endangerment of Plaintiffs' health,
which has resulted in severe damages, by this
pattern of fraud and extortion, and conspiracy
to commit the fraud and extortion, among the
named Defendants.
13. A pattern of fraud and extortion causing Plaintiffs
justified fear and anxiety over losses that caused
both Plaintiffs to seek and continue to seek
psychotherapy, as well as to force the litigation
in New Jersey concerning performance, and further,
the agony of this litigation, which addresses the
fraudulent and extortionate means and intent by
which Defendants still avoid performance.
14. These patterns of racketeering activity began
at approximately the same time that the physical
damages were ascertained to be of a serious
nature that would require surgery.
15. These patterns of racketeering activity, fraud,
conspiracy to commit fraud and extortion were
committed using communications by mail.
16. These patterns of racketeering activity, fraud,
conspiracy to commit fraud and extortion were
committed using communications by telephone
and FAX.
41) Attachments A and B were received by NJDICC, assigned
case numbers 95-78255 and 95-78257.
42) The investigator for NJDICC on these complaints was a
Mr. Robert Only.
43) Plaintiff Hammel sent eight (8) fax updates to Mr. Only,
who made it clear on first phone conversation that Plaintiff
was not to call him personally.
44) Copies of these complaints were sent to New Jersey State Senator
Byron Baer, and to New Jersey Representative Loretta Weinberg,
the office of the Governor of New Jersey as well as
The Attorney General, and the State Insurance Department
of New Jersey, among others.
45) The physical, emotional and financial conditions of both
Plaintiffs, coupled with attempts to maintain and also sell
the remaining video store business and the exhaustion from
writing those two complaints, made it clear that Plaintiffs
were in a situation incompatible with life. Plans were
made to salvage what could be salvaged and move to the
quiet mountains of North Carolina as a desperate attempt
to preserve what was left of body, sanity and spirit.
46) To aid Plaintiffs in relocating, their long time friend
Mr. Donald Walton of Rutherford, New Jersey lent a total
of approximately $15,000. This sum has yet to be repaid.
47) On or about January 18, 1996, Plaintiff Hammel received a
phone call from Linda Matthews who said she was State
Farm's Chief claim representative for Eastern New Jersey.
She opened with, "I understand you are not satisfied with
State Farm's handling of your claims."
48) The conversation with Ms. Matthews was pleasant, and
Plaintiff regarded this, finally, as an act of good faith.
The issue most fully discussed was that of State Farm's right
to an IME, which neither Plaintiff had ever denied.
We agreed upon a suitable neurosurgeon for IME, a Dr.
Andronico.
49) Copies of the complaint exhibits A and B were on or about
January 18, 1996 in Defendants' possession and remain
in Defendants' possession.
50) No answer, substantive affirmation or denial of any
statement in Exhibits A and B were ever received from
Defendants.
51) No answer, substantive affirmation or denial of any
statement in Exhibits A and B were ever received from
NJDICC.
52) There was never any indication, in the form of a report
from NJDICC, ever seen by Plaintiffs, or seen
by anyone with whom Plaintiffs have ever had any
communication. There is no evidence then, nor indication
nor any information that indicates that any investigation
by NJDICC exists, or was ever performed.
53) After telephone conversation with Ms. Matthews on or about
January 18, 1996, Plaintiff Bellamente immediately set
upon the task of setting up an appointment with Dr. Andronico,
but was declined appointments by his office staff saying that,
"State Farm does not pay it's bills."
54) Since declining IMEs with Dr. Merliss in a letter dated
November 2, 1995, no alternative physician had been
suggested by Defendants, until Plaintiff Hammel's conversation
with Ms. Matthews, on or about January 18, 1996
55) Plaintiff Hammel collected all the medical documents
indicating substantial injury, need for treatment and
logically sound objections to Defendants' continued
denial of benefits, and faxed them all to Ms. Matthews,
with a covering letter quoting the response from
Dr. Andronico's office regarding IMEs for Defendants.
56) All documents sent to Ms. Matthews except the covering
letter had been in Defendants' possession for months.
57) No further requests for IMEs have since come from
Defendants.
58) The single remaining store began to fail from
repeated closures because of Plaintiffs' incapacity or
need for medical treatment.
Several attempts to sell the business failed.
Foreclosure on residence was clearly inescapable.
59) Plaintiffs liquidated whatever could be liquidated,
borrowed money from friends, and moved to Graham
County, NC with hope of mental restoration, physical
rest and the ability to live more inexpensively and
therefore longer.
60) On or about February 9, 1996, knowing of Plaintiffs'
conditions, Mr. Andreas Michael of Teaneck, NJ,
the landlord of the video store "Ultra Videos" 288
Teaneck Road in Ridgefield Park NJ, had the premises
sealed by the Sheriff, for back rent.
The rent owed was considerably less than the value of
the contents of the store.
Plaintiffs were forbidden entry and lost valuable
personal effects as well as personal
and financial records, as well as the business itself.
Among the items lost was the signed contract for the
move from New Jersey to North Carolina.
61) Plaintiffs left New Jersey on February 11, 1996, leaving
the last day of loading to a long time friend Mr. Thomas
Thayer; Plaintiffs arrived in Robbinsville, Graham County,
NC on February 12, 1996.
62) The Movers, Mountain Movers of Sylva, North Carolina
who were hired for the move of household items from
New Jersey to North Carolina, despite receiving a most
complete inventory, failed to move one (1) out of four
(4) floors of valuable personal effects. All those items
were lost, among them all Plaintiff's financial records.
63) Fully 75% of what was moved had to be kept in storage
for well over one year.
64) When the stored items were finally unpacked, it was
discovered that many valuable and irreplaceable
items were absent, or damaged.
65) Plaintiff Bellamente was an owner of the house in which
both Plaintiffs lived, while Plaintiff Hammel paid rent
but also contributed $10,000 to the downpayment in purchase
of this house, while retaining no ownership under title.
This house was foreclosed on and auctioned at Sheriff's
sale at some time after the move to North Carolina.
66) On leaving New Jersey, Plaintiffs left the insurance
claim, and whatever could be done regarding sale of
the video store, and reasoning with Mr. Michael, in the
hands of Plaintiffs' attorney at that time John C.
Gavejian, whom Plaintiffs had known for years.
67) For some still unknown reason, Mr. Gavejian did not
file a PIP suit, and became uncommunicative and
unavailable.
68) Even while in North Carolina, Plaintiff Hammel maintained
correspondence with New Jersey State Senator Byron Baer.
69) Response from the New Jersey Department of Insurance
finally arrived, which amounted to nothing.
70) Senator Baer sent a copy of the report to Plaintiff
Hammel as sad tidings; a copy was also received from
The New Jersey Department of Insurance.
71) In further correspondence with Senator Baer, the
Senator agreed that this was not, in fact, a report.
72) As the statute of limitations was approaching, Plaintiffs
had to find a new attorney, and eventually did so through
NJATLA: Paul Jackson, Esq. for Plaintiff Hammel, and
Alan Genitempo, Esq. for Plaintiff Bellamente, who
currently are handling the PIP and UIM cases in NJ.
73) Though the trip was physically arduous, stressful and
expensive, there was no choice but that we meet with
Mr. Jackson in New Jersey.
74) It was clear that both Plaintiffs had to find a good
neurosurgeon, and searched out Dr. Michael M. Haglund,
who had been identified indirectly through Dr. David J.
Adams as a very good neurosurgeon, and neurologist.
Plaintiffs sought one specifically in North Carolina,
and one at Duke University Medical Center because of
its reputation of excellence.
75) In order to conserve Plaintiffs' energy and finances as
much as possible, on the way back to North Carolina,
Plaintiffs arranged to see Dr. Haglund at DUMC.
76) Scheduling of Plaintiff Hammel's surgery was made for
September 25, 1996.
77) Although Plaintiffs were both assured by various people,
one of whom was Joanne Johnson,
of DUMC's billing department that given the seriousness
of the surgery and Dr. Haglund's reputation, Defendants
would surely agree to the surgery, Defendants stood on
their unwarranted denial again saying, "the case is closed".
Plaintiffs arrived on September 24, 1996 at DUMC prepared
for Plaintiff Hammel's surgery, only to be told of
Defendants' continuing and fraudulent denial of clearly
necessary medical treatment.
78) Both Plaintiffs applied for SSI benefits because of
disabilities on or about May 9, 1996. Plaintiff
Bellamente received certification on or about July 8,
1996; Plaintiff Hammel received SSI certification
on or about January 12, 1997. Both certifications
were retroactive to the date on which Plaintiffs'
bank balance dropped below $1,000.00.
79) Plaintiffs' surgeries were rescheduled under Medicaid:
Plaintiff Hammel on May 13, 1997
Plaintiff Bellamente on June 24, 1997
and performed thereon by Dr. Michael M. Haglund.
80) Plaintiffs were required to travel to New Jersey for
Defendants' depositions of Plaintiffs which
took place regarding the PIP and UIM matters, on
February 25, 1998 from 2:00 PM to 8:00 PM.
81) While in New Jersey, for those depositions, both
Plaintiffs were thoroughly examined, at Plaintiffs' own
expense, by Dr. David Adams. Dr. Adams confirmed Dr.
Haglund's diagnosis of atrophied spinal cord of Plaintiff
Hammel, and suggested that the the drug Neurontin
(gabapentin) might be useful for relief of some of the
various bodily dysesthesias that originate from the
atrophied cord.
82) While in New Jersey for depositions, Plaintiff Hammel
was thoroughly examined, at Plaintiff's own expense, by
Dr. Gilbert Kepecs, Rheumatologist, concerning Plaintiff's
Right Shoulder.
Dr. Kepecs confirmed the continued existence of
inflammation of Plaintiff Hammel's Right Shoulder which
had gone untreated since Defendant's initial denial of
all medical benefits.
In spite of several courses of physical therapy,
range of motion and pain of the Right Shoulder had not
improved enduringly.
83) While visiting with Dr. Kepecs, Plaintiffs' car received
a long gouge which appears to have deliberately been made
by someone with a screwdriver.
84) On return to North Carolina from Depositions in New Jersey,
Plaintiff Hammel had to have his rectum and lower colon
manually disimpacted at Harris regional Hospital.
85) Final Physical Conditions of Plaintiffs as a result of
Defendants' actions:
Numerous and incapacitating sequelae, including, but not
limited to:
1. Plaintiff Hammel
a) Extreme vulnerability of C-cord
b) Painful and weakened neck muscles
c) Painful and weakened upper back and
shoulder muscles.
d) General muscle atrophy and weakness, most
notable in abdominals, causing the already
injured L-spine to be painfully deformed which
is exacerbated by the weakened muscles of lumbar
region.
e) Extreme difficulty in walking
f) Bowel and Bladder dysfunction
g) Sexual dysfunction
h) Loss of coordination, balance and position sense
i) Great alteration in the sense of touch
j) Extreme burning pain in hands
k) Extreme sensitivity to cold
l) Extremely diminished stamina
2. Plaintiff Bellamente
a) Weakened and painful neck
b) Loss of range of motion in neck
c) Painful and weakened shoulders
d) Periodic hand pain
e) Sudden onsets of painful right deltoid spasm
f) weakened and painful lumbar back
g) painful mid back
h) dysaesthesic left foot with loss of proprioception
i) difficulty walking
j) bladder dysfunction
k) penile malaesthesia
85) Physical therapy without enduring results:
Both Plaintiffs have no enduring results from several
courses of physical therapy.
86) Continued psychotherapy:
Both Plaintiffs remain in psychotherapy as a result of
Defendants' actions and the multitudinous sequelae of those
actions that grow like the roots of a tree.
V. LEGAL POSITION AND SUMMARY OF SPECIFICS
87) This case presents a distinction between a contractual
obligation, and how, and with what intent that obligation
is, or is not, performed. A case of "simple" fraud, bad
faith, breach of contract, etc. is one thing; the underlying
pattern of racketeering that produces the surface appearance
of these simple symptoms is a different and separate matter,
and one which can fall under federal jurisdiction. In this
case, Plaintiffs claim this situation exists.
88) In this case there are actions already pleaded by attorneys
Paul Jackson for Plaintiff Hammel, and Alan Genitempo
for Plaintiff Bellamente, for performance by Defendants.
These are matters which fall under New Jersey's right to
regulate insurance.
89) Here, Plaintiffs plead not on the issue of performance,
but rather on the issue of the pattern of actions, motives
and intent of nonperformance, all of which extends into the
area of due process, and its denial.
90) Plaintiffs allege, most generally, that underlying the
symptoms of this clear nonperformance is a motive and
pattern of extortion and racketeering activity, from which
Defendants do derive, and knew or should have known that
they did derive, great financial benefit, even if perpetrated
on only a small percentage of claimants.
91) It stands to reason that these violations of RICO
and Hobbs in a pattern of racketeering activity could not
have been applied with such aplomb, and systematic consistency
to Plaintiffs, without inferring that Defendants have these
systems and patterns of racketeering activities internally
institutionalized in such a way that this is their
"pattern of doing business".
92) Indeed, there are other examples of these very same patterns
being used with others of Defendants' policyholders who
make legitimate claims.
VI. AS AND FOR CAUSES OF ACTION, PLAINTIFFS HEREIN
COMPLAIN MORE SPECIFICALLY UPON U.S. CODE, COMMON LAW,
AND THE CONSTITUTION OF THE UNITED STATES,
OF DEFENDANTS':
93)
1. CONSPIRACY TO VIOLATE, AND VIOLATIONS OF
a) 18 USC 1961-1968a (RICO)
as well as violations of
b) 18 USC 1951 (Hobbs Act),
2. Tortious Interference with Contract,
3. Abuse of the Legal Process,
4. Malicious and Damaging Persecution,
5. Malicious denial of due process,
and seek relief from the Court for:
continuing violation, and for proximate damages caused thereby,
as outlined below. In order to conform to FRCP Rule 8, and
not to burden the Court, the outline in this complaint contains
only statements, together with documentation, of the small number
of predicate acts that are required under RICO and Hobbs in order
to void the anticipated motion to dismiss on the basis of
insubstantiality. Supporting documents submitted now are only
a demonstration to the court that this complaint has genuine
merit, is not an exercise in legal sophistry, and more
importantly that it is substantive in law and in damages.
94) Plaintiffs allege that the "predicate acts" of 98) under
both RICO and Hobbs, do establish a pattern of racketeering,
and extortion, by Defendants which constitute the "enterprise".
95) A "Pattern of Racketeering activity" is defined to be a pattern
that has both continuity and relationship. This pattern began
on or about July 26, 1995 with Defendants' multiple letters of
denial to both Plaintiffs; it continues to this moment, and
there is certainly a threat that such activity will continue
into the future. The activities of racketeering continue, and
there is no evidence available to Plaintiffs that even suggests
discontinuance of these activities. Continuation of this
pattern by Defendants is also a continuation of damages to
Plaintiffs.
96) Plaintiffs further allege that this pattern contains a sequence
of events, over years, that all have the same and common purpose,
and that that purpose is one of egregiously deliberate,
calculated and malicious, fraud and extortion which is a
"pattern of racketeering activity".
97) The particular complaints of RICO and Hobbs violations, i.e.,
instances of predicate, and explicitly prohibited acts, for each
plaintiff, as documented assertions, are as follows:
98) Plaintiff Alan J. Bellamente alleges patterns of,
1. FRAUD:
Malicious, reckless and unwarranted denial of medical
benefits, in the face of the written declarations of
David J. Adams, M.D., Neurologist
Robert C. Rubin, M.D., Neurosurgeon
John F. Pojedinec, M.D., Orthopaedic Surgeon
to Defendants that surgery was required for neural
decompression, which compression was a consequence of
the MVA. The delay in surgery due to the persistent
pattern of racketeering activities has produced permanent
neurological injuries.
2. CONSPIRACY TO COMMIT FRAUD:
a) Claims adjusters named in Exhibits A and B,
believed by Plaintiffs to be part of an internal
group, all acted in agreement and concordance,
both written and spoken in the activities of 40).
b) On information and belief, Sandra Romei, supervisor
to this group, never indicated any variance from
or disapproval of these activities.
c) Assuming that Linda Matthews presented herself
correctly as Defendants' claims representative for
Eastern New Jersey, she did not respond to either
the factual medical information sent to her, or to
the refusal for IME by Dr. Andronico's office;
nor did she make any attempt to stop or condemn
the activities of 40). Only her consent and aid
can be presumed.
d) It is highly unlikely, within any corporate
structure, that a person with Ms. Matthew's assumed
authority could act independently and without
guidance in corporate policy from yet higher
authority.
e) Further refusal by the parent company to address,
correct or condemn the activities of 40) is once
again, a token of consent and aid to these
activities.
3. EXTORTION:
The fear inducing continuation of the above malicious
denial which exists to this moment, continuing delays,
and abuse of process, are all causes for this Plaintiff
to remain in psychotherapy, in addition to the requisite
therapy for PTSD stemming from the MVA.
4. MAIL FRAUD:
The U.S. mail was used as an instrument of the initial
fraud, conspiracy to commit fraud, and in the continuation
of this fraud and fear inducing extortion.
5. WIRE FRAUD:
Both telephone and FAX were used in the continued
fraud, conspiracy to commit fraud, and in the continuation
of this fraud and fear inducing extortion.
99) Plaintiff William C. Hammel alleges patterns of,
1. FRAUD:
Malicious, reckless and unwarranted denial of all medical
benefits by Defendants, on or about July 26, 1995, the same
time as Plaintiff Bellamente, not only without cause, but
in contradiction to Defendants' own IME.
Subsequent denial by Defendants of necessary cervical
surgery at Duke University Medical Center, which surgery
was deemed medically necessary and scheduled for September
25, 1996 by Michael M. Haglund, M.D., Ph.D, Neurologist,
Neurosurgeon. Dr. Haglund's decision was based on thorough
neurological examination, and MRIs that were taken well
before Defendants' total denial of all medical benefits.
Dr. Haglund's diagnosis was corroborated by
David J. Adams, M.D., Neurologist. The delay in surgery,
due to the persistent pattern of racketeering activities
has produced serious, permanent, degenerative and disabling
injuries to the cervical spinal cord (atrophy).
The surgery was finally performed May 13, 1997.
2. CONSPIRACY TO COMMIT FRAUD:
Repeat 98).2.
3. EXTORTION:
The fear inducing continuation of the above malicious
denial which exists to this moment, continuing delays,
and abuse of process, are all causes for this Plaintiff
to remain in psychotherapy, for an original and continuing
diagnosis of "severe anxiety", in addition to the requisite
therapy for PTSD stemming from the MVA.
4. MAIL FRAUD:
Repeat 98).4
5. WIRE FRAUD:
Repeat 98).5
100) From this continuing, egregious and malicious pattern of
racketeering and extortion by Defendants, in violation of
RICO and Hobbs, and also because Defendants are:
1. in violation of contractual fiduciary duty,
before and through the litigation process of the
cases cited in 17),
2. as well as common laws prohibiting fraud,
extortion and theft,
Plaintiffs allege further that as a proximate cause of
Defendants' Pattern of Racketeering activities, Plaintiffs
have suffered, great, permanent and irreparable physical,
psychological, emotional, spiritual and financial harm and
damage, all of which has left Plaintiffs destitute, unable
to work and unable to live as independent and productive
human beings.
101) Plaintiffs allege that the people, and governmental entities
of the United States which Plaintiffs have named, and on behalf
of whom Plaintiffs also complain, have also been personally and
financially damaged, through their sense of justice, and in
their attempt to mitigate and contain, to the best of their
ability, the damages of proximate cause that have been maliciously
and insistently inflicted by Defendants, on Plaintiffs, over a
period of approximately four (4) years.
VII. REGARDING THE RACKETEERING "ENTERPRISE": FRCP 19(c)
102) While Plaintiffs understand that the whole of this enterprise
necessarily extends to The New Jersey Department of Insurance
Consumer Protection, also to the New Jersey Department of
Insurance, now called The New Jersey Department of Insurance
and Banking, and even to the Government of the State of New
Jersey, Plaintiffs decline to request waivers of State's rights
provided under the Eleventh Amendment of the Constitution of
the U. S., and so do not include these as Defendants in this
action at this time.
VIII. RELIEF SOUGHT:
103) Any relief from continuing racketeering and extortion activities:
the prohibited acts of RICO and Hobbs, under intervention
provided in 28 USC 1367, that the court can give.
Plaintiffs understand that, ultimately from amendments III
and XI of the constitution and by U. S., Sup. Ct. precedent,
this court may not remove the Cases sited in 17), in the State
of New Jersey to this Federal District Court, thus interfering
with the State's right to regulation of insurance granted
by 15 USC 20 (The McCarran-Ferguson Act), but Plaintiffs see
no reason why Federal intervention by way of court order is
not allowed and appropriate when the actions (the how, not the
what) of the Defendants' actions are in violation of US Code,
and when such U.S. Code automatically has Federal District
Court jurisdiction.
104) Compensatory Relief in the form of $60,000,000.00 for direct
and proximately caused damages to life, limb, well being and
finances of Plaintiffs stemming from Defendants' actions,
as will be outlined and apportioned, which damages will have
such lifelong irreparable effect as severe pain, severe
disabilities and severe impairments, that permanently
prohibit Plaintiffs from being self supporting, productive
individuals.
105) Such compensatory damages, plus interest, as may be verified
and claimed by the persons and entities upon whose behalf
Plaintiffs also complain, by virtue of existing contractual
agreements, in accordance with FRCP Rule 71;
106) Any and all interest accrued by debt to the Internal Revenue
Service of the U. S., during the period of continuing pattern
of racketeering activity, by virtue of Defendants' destruction
of Plaintiffs' ability to pay the initial debt.
107) Any damages, plus interest, that may be payable and due, to
the Court itself, in compensation for whatever relief the Court
itself may have accorded the Plaintiffs; this, since Plaintiffs'
inability to defend themselves otherwise is a direct consequence
of the Plaintiffs' destitution, which is caused by the unabated
insistence on a clear pattern of racketeering activity engaged
in within the "enterprise" that includes claimed "insurance".
108) All Plaintiffs' Costs in this litigation, and as well, just
compensation for the destructive and onerous work and effort that
has been forced, under duress and extortion, upon Plaintiffs by
Defendants' actions; Plaintiffs request special consideration
from the court in a determination of attorneys' fees, by the
court, in recognition of the work done, and cost of necessary
tools required to act as attorneys, Pro Se.
109) Restitution of all Premiums paid to Defendants, over and above
that which was paid as any minimum required by State Law, for
any services that Defendants have purported to provide, over
any time that State Farm has ever been paid for such purported
services.
[Given, that these purported services, which have been provided
in return for this money, were "insurance" in name only, and that
Defendants' statement to the contrary was an act of deliberate
and calculated fraud, which fraud violates and abrogates any
agreement that may, in any way, be construed as contractual from
any "insurance policy" with State Farm. Plaintiffs entered
this agreement with good faith, while Defendants entered
it not only with "a priori" bad faith, but with "a priori"
design of fraud and design of extortion: this just happens
to be Defendants' "way of doing business" which Plaintiffs
understand as the very definition of a pattern of racketeering
activity that goes well beyond the mere "pattern" that is
understood, in multiple definitions by the various Courts of
the United States.]
110) And finally, any further damages of whatever kind that the
Court may deem suitable, just or appropriate, to Plaintiffs,
the Court, or any persons or entities upon whose behalf the
Plaintiffs also complain.
IX. DEMAND FOR JUDGMENT AND TRIAL BY JURY
111) On the basis of all the foregoing, Plaintiffs demand judgment
for the stated relief, in trial by jury.
X. PLAINTIFFS' AVERMENT REGARDING RULE 11, FRCP
112) Further extant evidence and argumentation, elucidating the
pattern of racketeering activity, and information which will
be acquired in the process of discovery, will establish the
necessary preponderance of evidence as is required by the
Court in accordance with the Federal Rules of Civil Procedure.
113) In particular, with regard to Rule 11 of FRCP, Plaintiffs aver
that all statements and allegations are true upon information,
belief, and reasonable investigation, and further that this
action is not brought with any purpose to harass or defame
Defendants, and further that it is not of any nature that
could be called frivolous.
114) Plaintiffs have, in good faith, attempted to balance the
the necessary requirements of specificity and particularity,
under Rule 9(f) of FRCP to establish sufficiency of this
pleading, with the requirements of concision and directness
under Rule 8(e) of FRCP, all in accordance with Rule 11 of
FRCP.
______________________________________________________________
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
DATE: DATE:
Top of Page
Home Page
Insurance Page
Uncivilization and its Discontents
Essay Page
Email me, Bill Hammel at
bhammel AT graham DOT main DOT nc DOT us
READ WARNING BEFORE SENDING E-MAIL
The URL for this document is:
http://graham.main.nc.us/~bhammel/RICO/complaint.html
Created: August 13, 1999
Last Updated: May 28, 2000