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Genthon v. Kratville7/1/2005
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, and McCormack, JJ.
Donald Muldrew's mother, Victoria Muldrew (Victoria), was admitted to a nursing home and died shortly thereafter. Muldrew retained Michael B. Kratville to represent his family in a wrongful death action against the nursing home based on medical negligence. After Kratville withdrew from the case, Muldrew filed a defective pro se wrongful death petition. The wrongful death petition was eventually dismissed for failure of service within the statutory period. Ultimately, the special administrator of Victoria's estate brought a legal malpractice claim against Kratville, claiming that his negligence resulted in the loss of the estate's wrongful death claim against the nursing home. A jury found in favor of the estate, and Kratville appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Victoria was admitted to Northview Villa Nursing Home (Northview) on April 18, 1994, following a period of hospitalization. She died on May 26. Muldrew retained Kratville and his firm, Terry & Kratville, to represent the Muldrew family in a wrongful death action against Northview.
On April 6, 1996, Kratville informed Muldrew that he was discontinuing his representation of the Muldrew family in the claim against Northview. Muldrew then filed a pro se wrongful death petition against Northview on April 18, which required service by October 18. See Neb. Rev. Stat. § 25-217 (Reissue 1995). However, the wrongful death petition was brought in Muldrew's name, individually, instead of in the name of a personal representative for the benefit of the next of kin, as required by Neb. Rev. Stat. § 30-810 (Reissue 1995).
On October 14, 1996, Kratville sent a letter to Muldrew, advising him that a representative of Northview's insurance adjuster had contacted him and expressed an interest in settling the case and that Kratville would be willing to pursue such a settlement on Muldrew's behalf. Paulette Genthon, Muldrew's girl friend, testified that she and Muldrew met with Kratville on the morning of October 16 and provided him a copy of the pro se petition they had filed in April. Genthon stated that Kratville agreed during that meeting to resume representation of the matter and to take care of the service deadline approaching on October 18.
In contrast, Kratville testified that he merely spoke with Genthon via telephone on the afternoon of October 16, 1996, at which time Genthon informed him of the pro se petition, indicating that it had been filed on April 17 rather than the true filing date of April 18. Kratville further testified that he did not see the petition--and therefore was not aware of its defects--until the end of October or early November. Finally, Kratville testified that during his October 16 conversation with Genthon, he agreed to look at the court file but had not yet agreed to go forward with the matter, expressing a desire to speak with Muldrew before doing so. Kratville negotiated with Northview's insurance adjuster and, at trial, claimed he had an agreement with the adjuster that service on the wrongful death petition could be postponed as long as the parties were involved in negotiations. In March 1997, Kratville again withdrew from representation in Muldrew's wrongful death suit against Northview.
Around August 20, 1997, Muldrew retained the services of George Achola, and subsequently, service was made on Northview. On December 1, the wrongful death case was formally dismissed for failure of service within 6 months of the original filing, as required under § 25-217.
On October 13, 1998, Muldrew, as special administrator of Victoria's estate, filed a legal malpractic
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