dissenting.
I write to acknowledge the problem that has been created in cases such as this in which there are multiple tortfeasors, but each is not a party to the case. I now realize that I should have done so in ProAssurance Indemnity Co., Inc. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689.
While this court has not rejected the idea of an empty-chair defense, we did hold the statute providing the procedure for assessing nonparty fault unconstitutional because it violated the separation of powers. See Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. However, we held that the law modifying joint and several liability, found in section 16-55-201, clearly defines the right of a party and is, therefore, substantive.
Section 16-55-201 provides:
(a) In any action for personal injury, medical injury, property damage, or wrongful death, the liability of each defendant for compensatory or punitive damages shall be several only and shall not be joint.
(b)(1) Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.
(2) A separate several judgment shall be rendered against that defendant for that | ^amount.
(c)(1) To determine the amount of judgment to be entered against each defendant, the court shall multiply the total amount of damages recoverable by the plaintiff with regard to each defendant by the percentage of each defendant’s fault.
(2) That amount shall be the maximum recoverable against that defendant.
Ark.Code Ann. § 16-55-201 (Repl.2005). For a case in which all tortfeasors are parties, then a defendant’s right to only be held liable for the amount of damages specifically allocated to them is not a problem. However, there is no mechanism for doing so in cases in which other tortfea-sors settle or are not otherwise proper parties.
This court in Metheny held that a non-party could not be put on the verdict form for the purpose of allocation. See Metheny, 2012 Ark. 461, 425 S.W.3d 689. However, we went too far by holding that section 16-55-201 simply does not apply to a case in which there is only one defendant. This is an absurd result because in a case where there are multiple tortfea-sors, several liability would apply to a defendant when the plaintiff chooses to sue all the tortfeasors together and if the other tortfeasors do not settle. Moreover, we came to that conclusion simply because the statute used the words “each defendant.” Reading the statute as a whole, it is clear that each defendant means each defendant, whether there be one or many. Each defendant is each and every defendant, any defendant.
In the instant case, St. Vincent had a right, regardless of the fact that Golden Living had already settled and been dismissed, to be held liable only for the amount of damages allocated to it in direct proportion to its percentage of fault. Cases such as this are complex in that while St. Vincent and Golden Living are not “joint tortfeasors” in the classic sense of acting in concert, the nature of the damage done and the relief being sought— pain and suffering, |1fimental anguish, past and future medical expenses, permanency of injuries, scars and disfigurement, and past and future caretaking expenses — are such that it is impossible to allocate the responsibility of each tortfeasor separately-
It has become evident to me that while our current rules of practice and procedure are sufficient in the majority of cases, they are not sufficient for all — especially with joint and several liability having been abolished. Attempting to solve this problem on a case by case basis will only create a larger one. Therefore, rules must be established for the bench and the bar faced with this dilemma. I would immediately refer this matter to the Supreme Court Committee on Civil Practice for consideration and request that proposals be made as soon as possible.
Since there was not a rule in place to carry out the fault apportionment required in the instant case, the circuit court should have utilized its authority under Ark. R. Civ. P. 81(c) to create its own procedure and found that, given the circumstances in this type of case, Golden Living was indeed a necessary party under Ark. R. Civ. P. 19(a) for purposes of allocation only.
It is for these reasons that I dissent.