concurring specially.
I agree with the opinion authored by Justice Gierke. In Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334 (N.D.1983), I concurred specially in the majority opinion. I indicated that I preferred the alternative solution referred to in Justice Sand’s opinion, in which he specially concurred and dissented, i.e., the denial of subrogation under Section 65-01-09, N.D.C.C., and a corresponding reduction in the judgment pursuant to Section 32-38-04(2), N.D.C.C. That solution is similar, if not identical, to the judgment entered by the trial court on remand of Layman I. I continue to prefer that solution. However, as I also recognized in my concurring opinion, that solution was discussed by this court in Sayler v. Holstrom, 239 N.W.2d 276 (N.D.1976), but rejected therein for the reason it is one that should be submitted to the Legislature for its consideration. I further noted that because the Legislature had not acted perhaps we should reconsider our decision in Sayler, but that neither the Bureau nor the employer were parties to the action and it would be unjust to adopt such a resolution without the opportunity for those parties to participate in the case. Thus there is no question in my mind that the approach taken by the trial court on remand was considered but rejected by a majority of this court in Layman I.
Because of my remarks about reconsidering our decision in Sayler and my observation that neither the Bureau nor the em*105ployer were parties to the action, BMA assumed that if they were parties I would not have concurred in the majority opinion in Layman I. BMA notes that the Bureau is, in fact, a party to the action because Layman’s counsel actually represents the Bureau as a result of the Bureau’s subro-gation rights. See Sec. 65-01-09, N.D.C.C. Layman’s counsel conceded at oral argument that he represented the Bureau as well as Layman. BMA therefore indicated to the trial court that had I not been confused as to the true state of the record I would not have concurred in the majority opinion. Although BMA is correct that counsel for Layman represents the Bureau as well as Layman, I am unwilling to concede that the Bureau represents the employer where, under a factual situation similar to the one before us, the judgment rendered by the district court on remand could adversely affect the premium rating of the employer with the Bureau. Presumably if the Bureau recovers through jts right of subrogation the rating would not be affected but if it does not recover the rating would be affected. It appears to me that there is some conflict of interest between the Bureau and the employer in those instances. If we are to reverse Say-ler all affected parties should be represented before the court prior to our embarking on such a radical departure from our past decisions.