Reyna] Guido is the mother of two minor children. [Domingo]

Martinez, the children’s father, died after he was run over by a car on July 8, 2001. Martinez was the victim of a hit-and-run accident.

Guido, as personal representative of Martinez’s estate, retained

[Sandra] Stern to fi le a wrongful death lawsuit. On July 8, 2003, Stern fi led a wrongful death complaint in the district court. But Stern admits that she never perfected service of the complaint, and because the complaint was not served within six months of fi ling, the case was dismissed by operation of law.

* * * On February 6, 2007, Guido fi led these legal malpractice claims against Stern 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 next friend of the children.

The district court found that the malpractice claims accrued on May 7, 2004, when the wrongful death claim was dismissed. The court found that the estate’s claim against Stern was time barred. In response to Guido’s argument that the children’s minority tolled [suspended] the statute of limitations with respect to them, the court found that because the children could not have brought the underlying wrongful death claim in their own names, the statute of limitations for the legal malpractice claims was not tolled by reason of the children’s minority. The court granted summary judgment in favor of Stern and dismissed the complaint.

* * * *

Guido [appealed, claiming] that the district court erred in granting Stern’s motion for summary judgment on her affi rmative defense of the statute of limitations and, specifi cally, 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.

We note that neither Guido’s assignments of error nor the argument in her appellate brief challenges the district court’s dismissal of Guido’s claims as an individual and as personal representative of Martinez’s estate. Therefore, those aspects of the court’s judgment will be affi rmed.

* * * *

The issue in this case is whether Stern owed an independent duty to the children, as Martinez’s next of kin, to timely prosecute the underlying wrongful death claim.

* * * *

In Nebraska, a lawyer owes a duty to his or her client to use reasonable care and skill in the discharge of his or her duties, but ordinarily this duty does not extend to third parties, absent facts establishing a duty to them. [Emphasis added.]

But that does not end our analysis.

* * * We have never said that privity [of contract] is an absolute requirement of a legal malpractice claim. Instead, we have said that a lawyer’s duty to use reasonable care and skill in the discharge of his or her duties ordinarily does not extend to third parties, absent facts establishing a duty to them. On the facts of this case, we conclude, as have other courts to have addressed this issue in the context of a wrongful death action, that the facts establish an independent legal duty from Stern to Martinez’s statutory beneficiaries. [Emphasis in the original]

* * * 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 benefi ciary of the attorney’s services.

[Emphasis added.]

* * * *

In this case, we conclude that Stern owed a duty to the children, as direct and intended benefi ciaries of her services, to competently represent their interests. To hold otherwise would deny legal recourse to the children for whose benefi t Stern was hired in the fi rst place.

* * * Stern owed a legal duty to Martinez’s minor children to exercise reasonable care in representing their interests. Therefore, they have standing to sue Stern for neglecting that duty, and their claims against Stern were tolled by their minority. The district court erred in concluding that their claims were time barred. We affi rm the court’s dismissal of Guido’s individual claim and its determination that the estate’s claim against Stern was time barred. But with respect to the children, this cause is reversed and remanded for further proceedings to fully adjudicate Guido’s claims on behalf of the children * * * .

Affi rmed in part, and in part reversed and remanded for further proceedings.

Questions:-

1. 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?

2. Why did the court affi rm the dismissal of Guido’s individual claim but not the claims that she had brought on behalf of the children?