(dissenting).
{26} The Majority assumes that the Legislature made a compromise, whereby “property owners may obtain insurance when they might not otherwise be able to, and in addition, they are given a speedy administrative remedy including the opportunity for judicial review; in exchange, they are deprived of the right they would ordinarily have to sue them insurers for bad faith.” (Majority Opinion, pg. 1132).
{27} I am afraid that this would be a rather bad compromise. What good is the property insurance if those who provide it to you can seriously harm you by exercising bad faith and you cannot get relief through the courts? Not a very good compromise. Not a very good trade-off, in my opinion. We would be sanctioning a system where property insurance companies would have no incentive to refrain from acting in bad faith.
{28} The Majority compares the tradeoff between worker and employer in the workers’ compensation statutes, citing Morales. That comparison fails because Morales, Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148, and the very recent case of Salazar v. Torres, 2005-NMCA-127, 138 N.M. 510, 122 P.3d 1279 [Vol. 44, No. 48 SBB 24 (Dec. 5, 2005)], cert. granted, No. 29,476, 138 N.M. 587, 124 P.3d 565 (Nov. 7, 2005), follow the trend that our Supreme Court set over the last several years. That trend began with Delgado, when the Supreme Court allowed a plaintiff worker to bring a tort action in court against an employer who acted with such a complete disregard for the worker’s safety, that it wipes away the employer/insurer’s immunity. See also Salazar, 2005-NMCA-127, ¶ 16, 138 N.M. 510, 122 P.3d 1279 (stating that “the balance between the worker and the employer in the [Workers’ Compensation] Act was designed for accidental events or acts, not willful or intentional acts”). Prior to Delgado and Morales, a worker could not sue an employer in court, but was trapped by the Workers’ Compensation Act in an administrative review, even when the employer acted with malice.
{29} Let us assume that the Majority is correct in pronouncing Section 59A-29-7 clear and unambiguous. I, therefore, set forth the language of this statute again:
There shall be no liability on the part of, and no cause of action of any nature shall arise against, any member insurer, the association or its agents or employees, the governing committee or the superintendent or his representative for any action taken by them in the performance of their powers and duties under the FAIR Plan Act.
Id.
{30} The Majority, in agreeing with Maes, states that “Audubon is not immune from suit in this case as a result of its being a member insurer.” (Majority Opinion pg. 1129). It further states that all of Audubon’s actions “that are relevant to this case were undertaken in its capacity as the Plan’s servicing insurer, not in its capacity as a member insurer.” (Majority Opinion, pg. 1129) (emphasis added). I read Section 59A-29-7 where it provides immunity for “the association or its agents or employees” to mean the people who work for the association, not a servicing insurer.
{31} Nowhere in this clear and unambiguous statute do we find immunity from liability for a servicing insurer. The statute mentions a member insurer, but not a servicing-insurer.
{32} Statutory provisions granting immunity from suit must be strictly construed. See Armijo v. Dep’t of Health & Env’t, 108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct.App.1989); see also Martinez v. City of Cheyenne, 791 P.2d 949, 956 (Wyo.1990), overruled on other grounds by Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004).
{33} The NMPIP Bylaws and Articles support a limited immunity interpretation of Section 59A-29-7. The NMPIP Bylaws provide indemnification to member insurers only as to their status as a member, or by x-eason of the insurer having personal representatives or employees serving on the governing committee, other committee or subcommittee, or officer or employee of the NMPIP.
{34} Even the indemnification for officers and employees of the NMPIP is limited to actions taken in connection with the administration, management, conduct, or affairs of the Program or the Committee. Nowhere in the Articles or Bylaws is there a provision to provide indemnification to the member insurers for actions taken in their capacity as servicing carriers. That failure to provide indemnification is consistent with the notion that the Program is not hable for the servicing carrier’s liability arising from the contracts it enters into with its insureds.
{35} In its Reply Brief, Appellant calls this argument a “non sequiter [sic] with a faulty premise” because “the Program pays all costs and expenses incurred by the Servicing Insurer, and all losses are borne ... by the Member Insurers.” Appellant finds no need for “an indemnification provision for the benefit of the Servicing Insurer, and the purported absence of one is irrelevant to the issue of immunity.”
{36} This same logic could be used to find that there would be no need for indemnification language in the NMPIP Bylaws and Articles for member insurers in their capacity as a member, or having personal representatives or employees on the governing or other committees or officers of NMPIP.
{37} However, § 59A-29-7 already provides protection for these individuals or entities by granting them immunity.
{38} So, the language of the Bylaws and Articles demonstrates an intent to view member insurers differently than servicing insurers or carriers.
{39} It seems to me that immunity goes to the administrative matters and actions concerning the insurance pool or association, and not the matters of coverage. Audubon is neither an agent nor an employee of the NMPIP, the association set up under the Fair Plan Act.
{40} Audubon should not be immune from Maes’ suit for bad faith insurance practices along with pre- and post-judgment intent. I would affirm the district court’s denial of Audubon’s motion to dismiss.
{41} I, therefore, respectfully dissent.