November 18, 2021
Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley recalls a drawn out, strenuous case early in his career that ends up pinning him against a former friend in the pursuit for justice.
The article, A Long, Difficult Battle to get Justice for a Victim, was published in the November 13 edition of The Examiner. An excerpt from the article is below.
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.