dissenting:
In Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo.1985), we recognized that workers’ compensation insurers were subject to a common law cause of action for mishandling claims in bad faith. The majority holds that the General Assembly’s 1991 amendment to section 8-43-304(1), 3 C.R.S. (1997), of the Colorado Workers’ Compensation Act (the Act) does not abrogate our decision in Savio. In my view, the General Assembly abolished the common law tort recognized in Savio when it added a remedy for bad faith to section 8-43-304(1). Accordingly, I dissent.
I.
“In construing statutes, courts must give effect to the intent giving rise to the legislation.” Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1053 (Colo.1995). The intent of the legislature must be determined by looking to the language of the statute according to its plain and ordinary meaning. See People v. Murphy, 919 P.2d 191, 194 (Colo.1996). In determining legislative intent, courts should consider the law as it existed before the legislative enactment, the problem addressed by the legislation, and the statutory remedy created to cure the problem. See Schubert v. People, 698 P.2d 788, 793-94 (Colo.1985).
The majority concludes that the tort of bad faith breach recognized in Savio is still viable because the General Assembly did not intend for the bad faith remedy in section 8-43-304(1) to be exclusive. In explaining its conclusion, the majority notes that “the 1991 amendment contains no explicit legislative mandate” indicating that the remedy in section 8^13-304(1) is exclusive. Maj. op. at 408.
In my view, the legislature is not required to abrogate the common law explicitly. In Colorado, an established common law rule may also be abrogated by clear implication: “[I]f the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication.” See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo.1995); Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo.1992). Furthermore, we should evaluate the entire Act — not just the 1991 amendment — to determine whether the General Assembly intended the section 8-43-304(1) remedy to be exclusive. See Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161, 1163 (Colo.1995) (“[T]o give full import to the purposes of the Act, all portions thereof should be read together and harmonized.”). Guided by these rules of statutory interpretation, I believe that the General Assembly intended to abrogate the common law tort recognized in Savio by adding an exclusive remedy for bad faith to section 8-43-304(1).
The General Assembly created a statutory remedy for bad faith when it amended section 8-43-304(1) in 1991. As so amended,7 section 8-43-304(1), 3B C.R.S. (1991 Supp.), provided in relevant part:
Any employer or insurer ... who violates any provision of [the Act], or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the *411director or panel ... shall be ... punished by a fine of not more than five hundred dollars per day for each such offense, payable to the aggrieved party.
(Emphasis added.) Prior to the 1991 amendment, insurers could be fined up to one hundred dollars per day under the Act for dealing with claimants in bad faith, but the fine was paid to the subsequent injury fund instead of the injured claimant. See § 8-43-304(1), 3B C.R.S. (1990 Supp.). In this respect, the fine operated as a penalty on the insurer but provided no remedy for the claimant. In 1991, the General Assembly transformed the penalty into a remedy by increasing the fine to five hundred dollars per day and directing that the fine be paid to the injured claimant.
By adding this new remedy to the Act, the General Assembly undermined the primary rationale of Savio. Savio recognized the common law tort of bad faith primarily because there was no statutory remedy for bad faith. See Savio, 706 P.2d at 1266 (“Any recovery for [bad faith breach] must be realized in courts of law because the Act provides no remedy for these injuries.”). The General Assembly directly addressed this concern by adding a remedy for bad faith to section 8-43-304(1). The General Assembly’s addition of this new remedy was no coincidence. It was an intentional effort to provide the exact remedy that Savio found lacking.8
Furthermore, according to section 8-41-102 of the Act, this new statutory remedy is the exclusive remedy for an insurer’s bad faith breach. Section 8-41-102, 3B C.R.S. (1997), of the Act provides in part:
[A]ll causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.
(Emphasis added.) The meaning of this section is clear. Ail remedies contained in the Act are exclusive. This interpretation is supported by several of our prior decisions which held that the broad language of the Act articulates a legislative intent to establish exclusive remedies. See Savio, 706 P.2d at 1264; see also Kelly, 890 P.2d at 1163 (“Recovery under the Act is meant to be the exclusive remedy for workers covered by its provisions.”); Roper v. Industrial Comm’n, 93 Colo. 250, 253, 25 P.2d 725, 726 (1933) (noting that one of the fundamental aims of the Act is to replace all existing remedies with the procedures supplied by the Act). Because section 8-43-304(1) provides the exclusive remedy for bad faith breach, it necessarily abrogates the common law tort recognized in Savio. .
II.
The General Assembly’s 1991 amendment to section 8-43-304(1) must be considered in light of this court’s 1985 decision in Savio. Savio recognized the common law tort of bad faith breach primarily because there was no statutory remedy for bad faith in 1985. Because the General Assembly added such a remedy to section 8-43-304(1) in 1991, the common law remedy recognized in Savio is no longer viable. Continuing to recognize the common law remedy would frustrate the purpose of the Act by slowing down the adjudication process and by subjecting claimants and insurers to unpredictable judgments. The General Assembly intended to avoid these problems when it added a remedy for bad faith to section 8-43-304(1). Accordingly, I dissent to the holding of the majority.
. Section 8-43-304(1) was amended again in 1992 and 1994, but these amendments did not change the exclusive nature of the remedy.
. One dissenter in Savio invited the General Assembly to amend the Act: "[I]f the legislature is satisfied with the result reached by the majority, nothing further need be done. If dissatisfied, the Act can be appropriately revised by the legislature.” Savio, 706 P.2d at 1278 (Rovira, J., dissenting). The General Assembly responded to this invitation when it added the new remedy to section 8-43-304(1).