(dissenting).
I respectfully dissent. The majority, to reach its conclusion that compliance with the 3-year wrongful death limitation period for the appointment of a trustee is not required to be “legally entitled to recover damages” under Minn.Stat. § 65B.43, subd. 18 (2002), cites to commentary and a case from another jurisdiction that are not about wrongful death—Sahloff v. W. Cas. & Sur. Co., 45 Wis.2d 60, 171 N.W.2d 914, 917 (1969); 1 Alan I. Widiss, Uninsured and Underinsured Motorist Coverage § 7.7 (2d ed.2001) (noting that the “particular considerations presented by wrongful death actions are discussed in § 7.8”). In fact, according to Widiss, numerous courts have reasoned that when a state’s wrongful death statute establishes a period of limitation, claims against the uninsured motorist underwriter should be subject to the limitation because the claimants were not “legally entitled to recover damages” once the period allowed by the wrongful death statute had passed. 1 Widiss, Uninsured and Underinsured Motorist Coverage § 7.8 (2d ed.2001). The majority also, in reaching its conclusion, cites to cases and commentary that discuss the meaning of the phrase “legally entitled to recover” as it is used in insurance policies rather than a statute—Milwaukee Mut. Ins. Co. v. Currier, 310 Minn. 81, 86-87, 245 N.W.2d 248, 250-51 (1976); Safeco Ins. Co. v. Barcom, 112 Wash.2d 575, 773 P.2d 56, 58-59 (1989); 2 Irvin E. Schermer & William J. Schermer, Auto Liability Ins.Sd § 37:1[4] (1995 & Supp.2003). In so doing, the majority reaches a conclusion that misconstrues the plain meaning of uninsured motorist coverage as defined by Minn.Stat. § 65B.43, subd. 18.
“Uninsured motorist coverage” means coverage for the protection of persons injured under that coverage who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles.
Minn.Stat. § 65B.43, subd. 18. Although appellant may have 6 years to bring a claim under the uninsured motorist statute, she still has the burden of proving a viable, underlying claim to show she is “legally entitled to recover damages.” Cf. Rouse v. Diunkley & Bennett, P.A., 520 N.W.2d 406, 409 (Minn.1994) (discussing the “case-within-a-case” principle in legal malpractice cases). This she cannot do because a trustee was not appointed within the 3-year time limit of MinmStat. § 573.02 (2002). The filing of a wrongful death action without the appointment of a trustee during the statutory filing period is a nullity and the 3-year time limit of Minn. Stat. § 573.02 is an absolute condition precedent to bringing a wrongful death action. Ortiz v. Gavenda, 590 N.W.2d 119, *464122-23 (Minn.1999). Further, “[a] cause of action arising out of an injury to the person dies with the person of the party in whose favor it exists, except as provided in section 573.02.” Minn.Stat. § 573.01 (2002). Because a trustee was not appointed within the 3-year time limit of Minn. Stat. § 573.02, appellant cannot show a viable underlying claim of wrongful death.
The most apposite case on the meaning of the statutory phrase “legally entitled to recover damages” as it applies to the limitation period for a wrongful death action is, I believe, Bocek v. Inter-Insurance Exch. of Chicago Motor Club, 175 Ind.App. 69, 369 N.E.2d 1093 (1977). In Bocek, it was held that, under a statute requiring an uninsured motorist to be “legally entitled to recover damages,” plaintiffs legal right to recover for wrongful death was contingent upon filing suit within the limited period for bringing a wrongful death action.1 Id. at 1097-98. Similarly, in cases interpreting the phrase “legally entitled to recover” in an insurance policy, courts in other jurisdictions have held that the right to recover for wrongful death is dependent upon compliance with the limitation period for bringing a wrongful death action. See Sykes v. Fireman’s Fund Ins. Co., 269 F.Supp. 229, 230-31 (S.D.Fla.1967); Country Mut. Ins. Co. v. Nat’l Bank of Decatur, 109 Ill.App.2d 133, 248 N.E.2d 299, 303-04 (1969); Crenshaw v. Great Cent. Ins. Co., 527 S.W.2d 1, 4-5 (Mo.Ct.App.1975); Brown v. Lumbermens Mutual Casualty Co., 285 N.C. 313, 204 S.E.2d 829, 834 (1974).
Regardless of whether the contract or tort statute of limitations applies to uninsured motorist claims, an uninsured motorist must still be “legally entitled to recover damages.” Minn.Stat. § 65B.43, subd. 18. The purpose behind uninsured motorist coverage is to afford the same protection to a person injured by an uninsured motorist as she would have enjoyed if the offending motorist had himself carried liability insurance. Bocek, 369 N.E.2d at 1097. Thus, the limitation of being “legally entitled to recover damages” legitimately and reasonably limits a potential cause of action to that which would be recoverable against an offending motorist had that motorist maintained liability coverage. Id. Any hardship caused by such a result is no greater than it would be for any person failing to bring a wrongful death action pursuant to the statute. Id. at 1098; cf. Ortiz, 590 N.W.2d at 125 (Anderson, Paul H., dissenting) (discussing the hardship of the effect of failure to appoint a trustee pursuant to the wrongful death statute).2 Therefore, I would affirm the court of appeals and hold that appellant is not legally entitled to recover damages because *465she does not have a viable underlying claim for -wrongful death in this case.
. In Franco v. Allstate Ins. Co., 505 S.W.2d 789, 793 (1974), the Texas Supreme Court held that a plaintiffs uninsured motorist claim based on wrongful death was not extinguished by the running of the 2-year limitation period for wrongful death actions even though a statute required persons claiming uninsured motorist coverage to be "legally entitled to recover damages." However, Franco relied in large part on the fact that the time limit for filing a statutory cause of action for wrongful death under Texas law was merely "procedural” rather than substantive, which stands in stark contrast to our interpretation of the time limits for filing a wrongful death claim under Minnesota law in Ortiz and Regie de l'assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 91-92 (Minn.1987).
. I am sympathetic to appellant’s argument. I joined the dissent of Justice Paul H. Anderson in Ortiz, which discusses the fact that the court ignored the remedial purpose behind the Wrongful Death Act and elevated form over equity in that case. Having decided as we did in Ortiz, however, we cannot ignore that a 3-year limitation for appointment of a trustee is a condition precedent before one is "legally entitled to recover damages” in a wrongful death action.