dissenting:
I respectfully dissent.
The majority opinion imputes to sections 27-12-101, et seq., C.R.S. 1973, a state policy and legislative intent that were not present in the statute until the General Assembly enacted Colo. Sess. Laws 1976, ch. 47, 10-8-123 at 383, section 10-8-123, C.R.S. 1973 (1976 Supp.). If the General Assembly had intended that in determining ability to pay for costs of treatment at a state mental institution health insurance policies could not be excluded, it could as easily have expressed such a policy when it enacted sections 27-12-101, et seq. It did not elect to do so until it enacted section 10-8-123 in 1976, and I am reluctant to apply such an explicit intent retroactively, which is the effect of the majority opinion.
Further, I would reverse the court of appeals on the basis of stare decisis. In Estate of Randall v. Colo. State Hospital, 166 Colo. 1, 441 P.2d 153 (1968), we held that this statute’s predecessor was to be strictly construed as it was in derogation of the common law. The present statute contains no express or implicit statement of public policy abrogating the right of an insurance company to limit its liability where the insured or a dependent is a patient in a state hospital. Also, the majority opinion’s interpretation of the statute results in the impairment of the insurance contract in violation of Article II, Sec. 11, of the Colorado Constitution.
The exclusion clause in Schleiger’s insurance policy provides:
“No payment will be made under this policy for expenses incurred by an Employee or a Dependent
“5. for charges which the Employee or Dependent is not legally required to pay or for charges which would not have been made if no insurance coverage had existed. . . .”
This clause must be construed with the present statute, clear of the penumbra of section 10-8-123, C.R.S. 1973 (1976 Supp.).
*536Therefore, I would reverse the court of appeals. MR. JUSTICE HODGES and MR. JUSTICE LEE have authorized me to say that they join in this dissent.