Opinion
No. A04-1445.
Filed March 29, 2005.
Appeal from the Anoka County, District Court, File No. C4-03-3028.
Mark D. Streed, Meshbesher Spence, Ltd., Woodbury, Mn., (for appellant).
Roger H. Gross, Kathleen M. Loucks, Gislason Hunter, Llp, Minnetonka, Mn., (for respondent).
Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this underinsured motorist action, appellant Geralyn S. Engler challenges the district court's order concluding that the scope of her recoverable damages for negligent infliction of emotional distress does not include distress caused by fear for her son's safety or from witnessing her son's 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.
DECISION
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), Engler's third-party liability suit based upon the same accident giving rise to her underinsured motorist claim. In Engler, we held: "A person cannot bring a claim for negligent infliction of emotional distress based on emotional distress caused by witnessing an injury to a family member." 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 tortfeasor's 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 another's safety. Because "[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal," Stubbs v. N. Mem'l 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.