CONCURRING WITH SEPARATE OPINION:
I fully concur in the reasoning and the result in the majority opinion. However, I write separately due to the confusion about the relationship between the common-law doctrines of contribution and indemnity and the statutory doctrine of apportionment under KRS 411.182. In Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky.2000), the Kentucky Supreme Court held that contribution and indemnity continue to be viable even after the adoption of comparativé fault and apportionment. Id. at 781. But in practice, contribution and indemnity merely serve as a basis for im-pleading third-party defendants who are later dismissed due to their lack of direct liability to the third-party plaintiff. Nevertheless, KRS 411.182 requires that those dismissed defendants be included for purposes of apportionment of fault.
In my opinion, this process has created a procedural tangle for trial courts and a source of potential confusion for juries. As a point of law, contribution and indemnity still exist. However, they are not needed because KRS 411.182 requires apportionment among all potentially liable parties, including those who have been dismissed or are not before the court. And while the purpose of apportionment is to assign liability in direct proportion to fault, the application often has the opposite effect. The jury is faced with the task of assigning liability among all potentially liable defendants, even those who are not present and do not present a defense. As the majority correctly notes, apportionment under these circumstances often serves only to diminish the amount of damages that can be obtained against the known defendant.
Consequently, I believe that our Supreme Court should take the opportunity to sort out the continued viability of contribution and indemnity and their proper relationship to statutory apportionment of fault. Doing so would alleviate a great source of confusion for trial courts and for juries. Until then, however, I must conclude that the majority opinion correctly sets out the procedure for impleading third-party defendants and apportioning fault among all potentially liable parties.