(concurring and dissenting):
I concur in the result and reasoning of the majority’s holding that the contract claim should not have been dismissed. But the order dismissing the negligence claim under the period of limitation specified in U.C.A., 1953, § 63-30-15 was correct, and I dissent from its reversal.
The result of the majority’s holding is unfortunate because it means that different periods of limitation and different procedures will apply to claims based on nongovernmental functions than to claims based on governmental functions. Since the line separating those types of functions is sometimes unclear, these differences will complicate the filing, administration, and litigation of claims. I believe the Governmental Immunity Act was intended to provide one integrated procedural scheme for all noncontractual actions against governmental entities.1 (Contractual actions are specifically excepted from the Act in § 63-30-5.) The majority’s holding frustrates this intent.
The majority’s reasoning is unfortunate because it casts doubt upon the rationale of a succession of recent cases defining a new direction in the interpretation of our Governmental Immunity Act and our law of sovereign immunity. The majority reasons that the one-year limitation is inapplicable to claims based on negligent performance of a nongovernmental function because § 63-30-15 only applies, by its' terms, “where immunity from suit has been waived as in this Act provided.”2 The majority apparently reads the quoted language to refer only to those express waivers of immunity pertaining to governmental functions in §§ 63-30-5 through -10. But this Court has repeatedly held in recent cases that the Governmental Immunity Act also impliedly waives immunity as to injuries inflicted during the performance of nongovernmental functions.
Thus, in Johnson v. Salt Lake City Corp., Utah, 629 P.2d 432 (1981), we interpreted the leading case of Standiford v. Salt Lake City Corp., Utah, 605 P.2d 1230 (1980), as holding that § 63-30-3 means not only that governmental entities are immune from suit for injuries resulting from the exercise of a governmental function, but also (as in Johnson) “that ... such entities are not immune from suit for an injury which does not result 'from the exercise of a governmental function.’ ” 629 P.2d at 433. Similarly, in our unanimous opinion in Madsen v. Borthick, Utah, 658 P.2d 627, 629-30 (1983), we concluded as follows:
It is evident from the text of the Utah Governmental Immunity Act, as inter*403preted in Standiford and Johnson, that this legislation significantly altered the common law of sovereign immunity, and substituted a statutory framework to be interpreted by the courts and reshaped by the Legislature as necessary from time to time. Under that framework, the right to maintain an action against the state or its political subdivisions can result (1) from a finding that the injury did not result from the exercise of a governmental function, or (2) from a finding that even though the injury resulted from the exercise of a governmental function, the government’s immunity has been expressly waived in one of the sections of the Act.
(Emphasis added; footnote omitted.)
In place of the foregoing reasoning, the majority relies on “a long line of cases predating the 1965 enactment of the Act,” and on Greenhalgh v. Payson City, Utah, 530 P.2d 799 (1975). The reasoning in pre-Act.cases is automatically suspect. In addition, as we noted in Standiford, the holding in Greenhalgh has now been “legislatively overruled,” 605 P.2d at 1232 n. 1, and its references to proprietary functions are outdated. Commencing in Standiford, continuing in Johnson and Thomas v. Clearfield City, Utah, 642 P.2d 737, 738 (1982), and most recently in Madsen v. Borthick, we have stated that the distinction between governmental and proprietary functions was totally abandoned in the new Governmental Immunity Act “to escape the inevitable chaos that had resulted from trying to apply a rule of law based on a distinction that was inherently unsound and unworkable.” 658 P.2d at 630, quoting Johnson, 629 P.2d at 433. Having abandoned that discredited body of law in favor of drawing new lines under the heading of “governmental vs. nongovernmental,” we ought to forego any reliance on cases employing the “proprietary” distinction.
In short, I believe the majority’s refusal to apply the Governmental Immunity Act’s limitations period to injuries resulting from a nongovernmental function is unfortunate for both its result and its reasoning. I dissent.
STEWART, J., concurs in the concurring and dissenting opinion of OAKS, J.. This interpretation is confirmed by the recent statutory amendment deleting the words "under this act” from § 63-30-11 in an apparent attempt to insure that the notice requirement applies to all injury actions against governmental entities. (See § 63-30-11, 1983 Interim Supp.)
. In 1983, § 63-30-15 was amended to read “in which immunity from suit has been waived in this chapter."