Because I believe that the Legislature intended to exclude intentional tortfeasors from apportionment of liability pursuant to CPLR article 16, I respectfully dissent from so much of the majority’s opinion as would remit this action to the Supreme Court, Kings County, for a new trial on liability.
I agree with the majority that the rule of joint and several liability, which traces its roots deep into the common law (see, Burrows v Rhodes [1899] 1 QB 816), serves the salutary purpose of allowing for full recovery by the injured party rather than "striking a nuanced balance between and among the relatively guilty” (Robinson v June, 167 Misc 2d 483, 488; see, Siegel, NY Prac § 168A, at 247 [2d ed]). This long-standing rule was modified, in some cases profoundly, by the enactment of CPLR article 16. As noted by the majority, CPLR article 16 emerged as a modified version of a report prepared by the Governor’s Advisory Commission on Liability Insurance. The "primary initial focus” of the Commission was the "liability insurance crisis” being faced by public entities such as municipalities, which in many cases, despite limited culpability, were being held liable for the entire verdict in actions and relegated to the futile pursuit of their often more culpable, but less solvent fellow tortfeasors for contribution (1 Report of Governor’s Advisory Commn on Liability Ins, letter of Chairperson Jones, Apr. *427, 1986). Thus, "[tjhe legislative history of [CPLR] Article 16 suggests that its central thrust is to discourage suits against municipalities and others with large insurance coverage or, at the very least, to permit such defendants the opportunity to settle their liabilities at reasonable sums” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1600:l, 1996 Pocket Part, at 222). However, when it became clear that CPLR article 16 would potentially deprive many an injured party of full recovery, the Legislature, especially the Assembly, voiced strong objections and, "[i]n its haste to achieve a compromise that would be acceptable to both plaintiffs’ and defendants’ bar * * * hurried through a bill that is permeated with ambiguities, overlappings and a style, grammar and syntax that often prove exasperating” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1600:l, 1996 Pocket Part, at 221). The compromises struck are, in large part, embodied in CPLR 1602, which limits the application of CPLR article 16 by declaring that it will not apply in 11 (now 12) enumerated categories. At issue here is the construction of CPLR 1602 (5), which excepts from the application of CPLR article 16, "actions requiring proof of intent.”
Exhaustive research has failed to reveal any source máterials illuminating the legislative intent underlying the enactment of the exceptions of CPLR 1602, which have been described as having "the elegance and clarity of the Internal Revenue Code” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1602:1, 1996 Pocket Part, at 228). Thus, the application of general principles of statutory construction are controlling. Where, as here, a statute is in derogation of the common law, it must be strictly construed, "to the end that the common law system be changed only so far as required by the words of the act and the mischief to be remedied” (McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a], at 460; see, Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81). Thus, this Court is enjoined to construe the exceptions of CPLR 1602 broadly so as to preserve the common-law rule of joint and several liability to the greatest extent possible. Applying this rule of construction, CPLR 1602 (5), which exempts from the application of CPLR article 16 "actions requiring proof of intent”, must be construed to exempt the conduct of intentional actors from being factored into an apportionment of liability among tortfeasors pursuant to CPLR article 16, even if such intentional conduct was a *43proximate cause of the injuries sustained (see, Splawn v Lextaj Corp., 197 AD2d 479; Pantages v L.G. Airport Hotel Assocs., 187 AD2d 273; 1 NY PJI 2d 548 [1996 Supp]). Such a result is supported by logic. It is against public policy to insure a party for damages intentionally inflicted, or for his or her own criminal acts (see, e.g., Astoria Quality Drugs v United Pac. Ins. Co., 163 AD2d 82; Carlson v Travelers Ins. Co., 35 AD2d 351; 69 NY Jur 2d, Insurance, § 686). Indeed, to the extent insurance exists, liability policies commonly exclude coverage for injuries intentionally caused by the insured (see, e.g., Allstate Ins. Co. v Mugavero, 79 NY2d 153; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Matter of Town of Huntington v Hartford Ins. Group, 69 AD2d 906; 70 NY Jur 2d, Insurance, § 1416). Thus, the broad exclusion of CPLR 1602 (5) expresses a reasonable policy decision by the Legislature to strike the balance between full recovery for the injured party and fairness to the tortfeasors by excluding from the application of CPLR article 16 those parties who necessarily have a limited potential for assets. The inequity of finding to the contrary is made manifest by the case at bar, wherein application of CPLR article 16 will result in the plaintiff bearing the cost of whatever damages are to be apportioned her assailant, who is now serving a lengthy prison term for his intentional and vicious crime.
I cannot agree with the reasoning of the majority, nor that of the case cited therein, Smith v McCain (NYLJ, Dec. 2, 1992, at 24, col 4), that the fact that the defendants were held liable solely for negligence, rather than intentional conduct, negates the application of CPLR 1602 (5). The damages claimed by the plaintiff arose from the savage beating she suffered at the hands of her assailant, an act that was clearly intentional. Thus, although the defendants were merely negligent in enabling the attack to occur, such negligence became actionable by reason, and upon proof, of the assailant’s intentional conduct. Indeed, here, the causal connection between the negligence of the defendant tortfeasors and the criminal conduct of the plaintiff’s assailant is much more direct than in many cases concerning premises liability (see, e.g., Rosario v New York City Hous. Auth., 230 AD2d 900 [landlord’s failure to install working locks on front and back doors to building]).
In sum, applying basic rules of statutory construction, and viewing CPLR article 16 in light of the mischief it was intended to remedy, it must be concluded that the Legislature, in enact*44ing CPLR 1602 (5), intended to exclude from consideration criminal or intentional acts when apportioning liability pursuant to CPLR article 16 and, therefore, to avoid casting back upon the injured victim of such acts the loss of that portion of the damages attributable to the party or parties who will, in all likelihood, be the least solvent. Accordingly, I would affirm the order and judgment appealed from in all respects.
Rosenblatt, J. P., and Coperttno, J., concur with Santucci, J.; Ritter, J., concurs in part and dissents in part in a separate opinion.
Ordered that the order and judgment is modified, on the law, by deleting therefrom the second decretal paragraph and the fourth through seventeenth decretal paragraphs; as so modified, the "order and judgment is affirmed, insofar as appealed from, without costs or disbursements, the jury’s findings of fact as to damages are affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability at which the jury shall apportion fault among the defendants 146 Montague Associates, and William Hurcomb, Jose Lugo, and Sandra Kaufer, as general partners of 146 Montague Associates, and George Rivera, and for entry of an appropriate amended judgment; and it is further,
Ordered that the order and judgment is affirmed insofar as cross-appealed from, without costs or disbursements.