A long, difficult battle to get justice for a victim

Bob Buckley
Legal perspectives
Bob Buckley

Earlier in my career, I met a lawyer from Columbia, Missouri, Danny Miller. At one time we were good friends and collaborated on some cases. We were both members of the Missouri Association of Trial Attorneys which is how we met. We met while at a dinner with mutual friends at Li’l Rizzo’s, an Italian restaurant up the hill from the Lodge of the Four Seasons, following a day of continuing education.

Danny was a brilliant lawyer, although I am not sure he ever gave full effort to being a lawyer. He used his law practice, in part, to fund his business ventures.

The first case we worked on together was one that I did nothing on except to be what is called “defendant ad litem” for a deceased psychologist in Columbia. When a party dies, the rules of procedure provide for appointment of a substitute for the defendant, who is usually a lawyer.

Danny represented a young girl who had been sexually molested by her father over the course of nine years. Her mother told her psychologist about the molestation, but she instructed the psychologist not to tell anyone. The counselor then began counseling the molester too, who admitted the abuse. After a time, the molester stopped counseling, but the psychologist never told anyone and never reported it to the authorities as required by Missouri law, so the abuse continued.

The first lawsuit was filed by the victim’s mother in 1991 because the victim was a minor. Danny had to establish new law in Missouri. The issue was whether a psychologist, who knows or should have known that a patient presents a serious danger of violence to an identifiable victim, has a duty to take protective actions to warn the intended victim, which may include notifying appropriate law enforcement authorities. An appellate court ruled that there was a duty so the case could proceed.

In the meantime, the insurance company for the psychologist denied coverage under the insurance policy and issued a letter called a “reservation of rights,” Under the reservation, the insurer could continue to defend its insured but later deny payment if a judgment was rendered. The insured did not have to accept the defense by the insurer and instead entered into an agreement with the victim pursuant to a Missouri statute. The victim agreed to accept some amount of money from the estate and then agreed to only pursue the insurance company under the policy and not the personal assets of the psychologist. Because the psychologist had died, his estate had been named as a party, but under the settlement agreement, I was substituted for the estate as the defendant ad litem.

The insurer also has a duty to exercise good faith toward its insured, and the insured had the right to sue the insurance company for bad faith in denying coverage. Part of the agreement between the psychologist and the victim was to assign the right to sue the insurer for bad faith.

The reservation of rights was a dangerous tactic for the insurance company, for if a court later decided that there was coverage, the insurer is liable for the full amount of the insurance policy and for damages for exercising bad faith. The settlement agreement provided that the parties would present a case to three arbitrators who were retired judges to decide if the victim prevailed and how much she should receive. A judgment was then entered by the court on the arbitration award for an amount in excess of the insurance coverage and the victim then proceeded to run a garnishment against the insurance company not just for the insurance limits, but for the entirety of the judgment by the arbitrators.

Over the course of eight years, beginning in 2002, the federal appellate court considered three appeals over the issues of insurance coverage. My name is included in all three appeals. Ultimately, it was decided that there was coverage and the insurer had to pay more than the limits of coverage.

I can’t take credit for any of the final result, but Danny’s lawyering with the aid of our mutual friend from Jefferson City, Roger Brown, was brilliant. Unfortunately, Danny did not honor his agreement with Roger for legal fees and a judge had to decide that Roger was entitled to his attorneys’ fees. I had to go to Marshall, Missouri to testify in that case in 2013, which was an uncomfortable position for me and destroyed my friendship with Danny, but I felt duty bound to tell the court that Roger had done the work and deserved to be paid. After a two-day trial, the Danny and Roger agreed to settle their dispute. A 22-year battle finally ended.

I only saw Danny one more time at one of our summer conventions, and we greeted each other but did not speak. I received word last week that Danny had died. He was a superb lawyer and obviously tenacious. He certainly had an impact on the law of Missouri with my name attached to it.

His obituary said that “he cared enormously about and used his resources unstintingly to make a difference in the lives of others.” Although our friendship had ended, I cannot disagree with that epithet. He certainly made a difference in the life of that young girl.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.