This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1445

 

 

Geralyn S. Engler,

Appellant,

 

vs.

 

Illinois Farmers Insurance Company,

an Illinois corporation,

Respondent.

 

 

Filed March 29, 2005

Affirmed

Toussaint, Chief Judge

 

Anoka County District Court

File No. C4-03-3028

 

 

Mark D. Streed, Meshbesher & Spence, Ltd., 8360 City Centre Drive, Suite 100, Woodbury, MN 55125 (for appellant)

 

Roger H. Gross, Kathleen M. Loucks, Gislason & Hunter, LLP, 9900 Bren Road East, Suite 215E, Post Office Box 5297, Minnetonka, MN 55343-2297 (for respondent)

 

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.


U N P U B L I S H E D†† O P I N I O N

TOUSSAINT, Chief Judge

In this underinsured motorist action, appellant Geralyn S. Engler challenges the district courtís order concluding that the scope of her recoverable damages for negligent infliction of emotional distress does not include distress caused by fear for her sonís safety or from witnessing her sonís injuries.† Because our decision in Engler v. Wehmas, 633 N.W.2d 868 (Minn. App. 2001), review granted (Minn. Dec. 19, 2001) and appeal dismissed (Minn. Apr. 5, 2002), is dispositive, we affirm.†

D E C I S I O N

This case reaches us in a unique procedural posture:† the facts, claimant, and legal issue are identical with those presented in Engler v. Wehmas, 633 N.W.2d 868 (Minn. App. 2001), review granted (Minn. Dec. 19, 2001) and appeal dismissed (Minn. Apr. 5, 2002), Englerís third-party liability suit based upon the same accident giving rise to her underinsured motorist claim.† In Engler, we held: ďA person cannot bring a claim for negligent infliction of emotional distress based on emotional distress caused by witnessing an injury to a family member.Ē† Id. at 869.

††††††††††† Although the supreme court granted review of that case, the matter was settled, and the appeal dismissed, before oral argument.† Since then, neither the supreme court nor the legislature has recognized a tortfeasorís duty to protect a person within the zone of danger from witnessing harm to a family member, or otherwise altered the elements of a claim for negligent infliction of emotional distress to permit a claim based on fear for anotherís safety.† Because ď[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal,Ē Stubbs v. N. Memíl Med. Ctr., 448 N.W.2d 78, 83 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990), and because our prior resolution of this issue is dispositive, we decline to recognize the novel tort advocated by Engler.

††††††††††† Affirmed.†