Case 30.3

FACTS Domingo Martinez died after he was struck by a car in a hitand-run accident on July 8, 2001. Reyna Guido, the mother of his two minor children and the personal representative of his estate, retained an attorney, Sandra Stern, to file a wrongful death lawsuit. On July 8, 2003, Stern filed a wrongful death complaint in the district court. Stern, however, never perfected service of the complaint, and because the complaint was not served within six months of filing, the case was dismissed by operation of law. On February 6, 2007, Guido sued Stern for malpractice on behalf of herself, the children, and the estate. Guido alleged that the wrongful death claim expired as a result of Stern's failure to timely perfect service of the complaint. Stern moved for summary judgment on the ground that the malpractice claims were barred by the two-year statute of limitations for professional negligence. Before the court ruled on the motion, Guido voluntarily dismissed her individual claim, but maintained claims as personal representative of the estate and on behalf of the children. The trial court found that the estate's claim against Stern was barred by the statute of limitations. The court granted summary judgment in favor of Stern and dismissed the complaint. Guido appealed, claiming that the district court erred in determining that the children had no independent standing to sue Stern and that Stern owed no independent duty to the minor children to protect their rights and interests. Guido also argued that the statute of limitations was tolled (suspended) during the children's minority.

ISSUE Should an attorney's duty of care in a wrongful death case extend to the minor children of the deceased whose rights were harmed by the attorney's malpractice?

DECISION Yes. The Supreme Court of Nebraska reversed the lower court's summary judgment in favor of Stern and remanded the case for further proceedings. The statute of limitations had not expired with respect to the children because the statute was suspended during their minority. REASON The question was whether Stern owed an independent duty to the children, who were Martinez's next of kin, to prosecute the underlying wrongful death claim in a timely manner. The reviewing court pointed out that a lawyer's duty generally does not extend to third parties. "Courts have repeatedly emphasized that the starting point for analyzing an attorney's duty to a third party is determining whether the third party was a direct and intended beneficiary of the attorney services." In this situation, Stern did owe a duty to Martinez's minor children-who were direct and intended beneficiaries-to represent their interests competently. "To hold otherwise would deny a legal recourse to the children for whose benefit Stern was hired in the first place." The court concluded that the children had standing to sue Stern for neglecting that duty. The claim was not barred by the statute of limitations because in Nebraska (and in most states), the statute was suspended while the children were minors.

WHAT IF THE FACTS WERE DIFFERENT? If the children had suffered no harm as a result of the attorney's malpractice, would the outcome of this case have been different? Why or why not?