According to Mr. Poppe, his questions were intended to discover policies even if they did not have cash value, as he needed to know about anything that “we need to be concerned with or deal with.” Mr. Poppe had no doubt in his mind that he asked about life insurance at this initial meeting.

According to Mr. Poppe, he and Ms. Rice met several times after the initial meeting and at no point did Ms. Rice mention anything about any life insurance policies.

Ms. Rice indicated that she did not recall talking about life insurance at the initial meeting or subsequently. She further asserted that she and her husband had a conversation about life insurance prior to the entry of the decree and that it was her intention to keep him as her beneficiary. She indicated that it was her belief that they each “retained right to our policies. To me that meant we retained the right to keep our beneficiary as well. We could do whatever we want. . . . We were each other's beneficiary and nothing changed with that divorce decree, was our understanding – my understanding.”

Mr. Poppe prepared a draft property settlement agreement. According to Ms. Rice, she went “back and forth to [Mr. Poppe's] office several times” about the agreement, and she made several suggestions that were incorporated into the final agreement.

The decree was entered on August 8, 2011. It included a property settlement agreement with the following provisions:

STOCKS, BANK ACCOUNTS, LIFE INSURANCE POLICICES [sic], PENSION PLANS AND RETIREMENT PLANS

[Ms. Rice] shall be awarded all interest in all pension plans, stocks, retirement accounts, 401(k), IRA, life insurance policy and checking or savings account in [Ms. Rice's] name, free from any claim of [her husband]. [He] shall be awarded all interest in any pension plans, stocks, retirement accounts, 401(k), IRA, life insurance policy and checking or savings account in [his] name, free from any claim of [Ms. Rice].

Paragraph IX provided:

PROPERTY PROVISIONS AND SETTLEMENT OF PROPERTY RIGHTS OF PARTIES

It is expressly understood by and between the parties hereto that the provisions of this agreement relating to the property and liabilities of each, set aside and allocate to each party his or her respective portions of the properties belonging to the parties and of the liabilities of the parties at the date hereto; and each party acknowledges that the properties set aside to him or her, less the liabilities so allocated to him or her, will be in full, complete and final settlement, release and discharge, as between themselves, of all rights, claims, interests and obligations of each party in and to the said properties and the same in their entirety constitute a full, fair and equitable division and the partition of their respective rights, claims and interests in and to the said properties of every kind and nature.

Paragraph X provided:

WAIVER AND RELEASE OF MARITAL RIGHTS . . .

(b) In consideration of the provisions of this agreement, [Ms. Rice] waives and relinquishes any and all interest or rights of any kind, character, or nature whatsoever, including but not limited to all rights to elective share, homestead allowance, exempt property, and family allowance in the property of [Ms. Rice's husband], and renounces all benefits which would otherwise pass to [Ms. Rice] from [her husband] by intestate succession or by virtue of the provisions of any Will executed before this Settlement Agreement which she, as wife, or as widow, or otherwise, has had, now has, or might hereafter have against [her husband], or, in the event of his death, as an heir at law, surviving spouse, or otherwise. [Ms. Rice] also waives and relinquishes any and all interest, present and future, in any and all property, real, personal, or otherwise, now owned by [her husband] or hereafter acquired, and including all property set aside for him in this agreement, it being the intention of the parties that this agreement shall be a full, final, and complete settlement of all matters in dispute between the parties hereto.

About a week after the divorce decree was entered, Ms. Rice's husband died. She made a claim for the death benefits under life insurance policies owned by him, but his children from his first marriage challenged her right to the benefits.

After the Nebraska Supreme Court decided that Ms. Rice had waived her beneficiary interest in the policies by the property settlement agreement, she sued Mr. Poppe for legal malpractice. She alleged that he had not advised her that the property settlement agreement waived her interest in her husband's life insurance policies. The trial court granted Mr. Poppe's motion for summary judgment, but the Nebraska Supreme Court reversed, concluding that Mr. Poppe had not established a prima facie case for which he was entitled to judgment as a matter of law.

On remand, a bench trial was held. Ms. Rice and Mr. Poppe testified as to the factual background of the case. Each also called an expert.

The trial court found in favor of Mr. Poppe, and Ms. Rice appealed to the Nebraska Supreme Court. Among other things, she argued that the trial court had erred in concluding that her failure to provide Mr. Poppe with information regarding her and her husband's life insurance policies broke the causal chain and prevented her from sustaining her burden for legal malpractice.

The Nebraska Supreme Court's Decision

The court affirmed.

In its decision, the court found that sufficient evidence had been presented at trial to support the trial court's finding. The court reasoned that Ms. Rice testified that Mr. Poppe did not ask about life insurance; Mr. Poppe testified that he did. In addition, the court continued, Mr. Poppe offered notes of his first meeting with Ms. Rice, indicating that he inquired about life insurance.

The court ruled that the trial court's finding as to this issue effectively negated Ms. Rice's claim as to causation – the property settlement agreement in the decree waived Ms. Rice's right to her husband's life insurance because she did not inform Mr. Poppe about that life insurance so that he could properly include it in the decree.

Accordingly, the court concluded that the trial court had not erred in concluding that Mr. Poppe did not breach any duty owed to Ms. Rice and that Ms. Rice could not show that, even assuming a breach of duty, that Mr. Poppe's action were the proximate cause of her injury.

The case is Rice v. Poppe, No. S-18-701 (Neb. March 22, 2019). Attorneys involved include: James R. Welsh and Christopher Welsh, of Welsh & Welsh, P.C., L.L.O., for appellant. Randall L. Goyette and Christopher M. Schmidt, of Baylor Evnen, L.L.P., for appellees.