NESCT upholds $275K legal malpractice verdict

Paulette Genthon, Special Administrator of the Estate of Victoria Muldrew, v. Michael B. Kratville, Terry & Kratville, appellant. Genthon v. Kratville, 270 Neb. 74 Filed July 1, 2005. No. S-04-350. Plaintiff in wrongful death Petition or complaint defectively filed because the deceased's estate's personal representative or special administrator was not the named plaintiff (30-810) should have the opportunity to amend to designate the personal representative as the party plaintiff. Clients retained attorney to pursue wrongful death case arising from nursing home negligence. Attorney sent decline letter about 6 weeks before 2 year wrongful death statute of limitations would run. Clients filed defective pro se wrongful death suit, but did not open an estate for the deceased nor did they obtain service of process. A few days before the 6 month deadline to accomplish service of process( Section 25-217) the clients went back to attorney to resume representation. The trial court held the attorney negligent for not opening up an estate and further not accomplishing service of process in the 2 or 3 days attorney had to get service on the nursing home defendants. The Supreme Court holds the wrongful death petition (now called complaint) could have been amended to name the estate's personal rep or special administrator, under Section 25-852 (repealed 2002). The real problem with the pro se filing however was that the "real party in interest" had not initially filed the suit. The legislature in 1999 clarified section 25-301 to permit substitution of proper parties to the case: "an action shall not be dismissed on the ground that it is not prosecuted in the name of the real party ininterest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest." In 1996 this issue may have been up in the air, although Rice v. Adam, 254 Neb. 219, 575 N.W.2d 399 (Neb. 03/13/1998) held that after a court grants summary judgment for the real party in interest's failure to bring the suit, the court give the plaintiff a chance to substitute parties, before 25-301 was amended. Russell v. New Amsterdam Casualty Company, 303 F.2d 674 (8th Cir. 1962) however should not provide the precedent to the Supreme court to allow a substitution of parties and relation back as Federal Civil Procedure rules had always been more liberal on substitution than the State Procedure Code had been