concurring in part and dissenting in part:
I concur with the court’s opinion to restore appellant’s actions for negligence and bad faith.
I disagree with the conclusion of the majority to permit liability only on operational decisions and its conclusion that punitive damages are unavailable to appellant.
Under the banner of what is termed a “parity of reasoning,” the majority states “[w]e therefore hold that self-insured employers and their administrators/agents are liable to negligent claims processing only to the extent that such processing constitutes what would be properly classified as an operational decision if made within the State Industrial Insurance System.” In response thereto, it is respectfully submitted that the limitation on liability for the State Industrial Insurance System originates in NRS 41.032.1 The attempt in the majority opinion to provide the same protection to the self-insurer purports to give the self-insured employer the same protection accorded the State Industrial Insurance System and other state agencies by statute. The majority opinion is clearly judicial legislation.
*1015Also, under the aegis of fairness, the majority opinion seeks to limit punitive damages against self-insured employers. As authority, it cites Rush v. Nevada Industrial Commission, 94 Nev. 403, 580 P.2d 952 (1978), for its holding that punitive damages are unavailable in actions involving negligent or malicious claims processing against the State Industrial Insurance System. An examination of Rush indicates that the holding was predicated on NRS 41.035.2 Clearly, the immunity offered by NRS 41.035 was only for the benefit of public entities and should not be construed by our court to apply to self-insured private employers.
While the goal of the majority is fairness, it seeks to reach this end by flagrant judicial legislation. The legislature is presumed to have known the law when enacting the measure to allow self-insurers. It is not the function of this court to fill in what may now, in our wisdom, appear to be legislative oversight. If, indeed, this is a problem, the remedy is not for us to change the law by judicial fiat but for the legislature to address this problem in the next session.
For the reasons stated above, I dissent from the majority opinion which, by judicial overreach, would provide to private employers certain immunities which the legislature has specifically made available only to governmental agencies.
NRS 41.032 states:
Conditions and limitations on actions: Acts and omissions of officers, employees and immune contractors. Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an immune contractor or an officer or employee of the state or any of its agencies or political subdivisions which is:
1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute or regulation has not been declared invalid by a court of competent jurisdiction; or
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the state or any of its agencies or political subdivisions or of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused.
NRS 41.035 states in pertinent part:
1. An award for damages in an action sounding in tort brought under NRS 41.031 or against a present or former officer or employee of the state or any political subdivision, immune contractor or state legislator arising out of an act or omission within the scope of his public duties or employment may not exceed the sum of $50,000, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant. An award may not include any amount as exemplary or punitive damages.