concurring in part and dissenting in part.
Aided by the acknowledged acuity of hindsight, it is obvious that the confusion over the damage awards likely would have been avoided by bifurcation of the liability and damage phases of this case. See Franklin Music Co. v. American Broad*778casting Cos., 616 F.2d 528, 538 (3d Cir.1979). Counsel who urged a potpourri of theories for recovery should have recognized that difficulties in reconciling the jury’s findings would inevitably occur.
A strong argument can be made here that the answers to the interrogatories on compensatory damages are so confusing that the only solution is to order a new trial on those issues. See Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 55 (3d Cir.1989). The district judge and the majority here have persuaded me, however, that it is possible to read the results in such a way as to carry out the jury’s apparent intent without wandering too far afield into speculation. But because I remain unconvinced as to the correctness of one item of the award — the damages relating to the UCC counts — I dissent from that portion of the judgment only.
When all of the dust settles, it is clear enough that the jury found that plaintiff had suffered losses in two distinct categories. The first involves the “special investment” scheme, which Murray represented to McAdam as a high-profit venture reserved for Dean Witter’s preferred customers. McAdam’s contribution to this venture consisted of cash given to Murray and checks made payable to Murray properly drawn by McAdam. In addition to seeking reimbursement for these amounts, McAdam sought to recover for losses of profits, allegedly suffered by companies he controlled. The jury apparently rejected the latter item, but did find against Dean Witter in the amount of $448,247.00 for the other claims in the common law counts. There was evidentiary support for this damage award, and I agree to that extent that the judgment should be affirmed.
The second category, that representing the UCC counts, is confined to the plaintiff’s loss from Murray’s forgery of endorsements on checks made payable to McAdam on his money market account. Significantly, the claims in this category are distinct from those relating to the “special investment” scheme. As the district court commented, the charge and the interrogatories to the jury “quite clearly separated consideration” of the two types of losses.
Before McAdam began to participate in the “special investment” scheme, he had a separate money market account with Dean Witter. It was on checks drawn on this fund that Murray forged McAdam’s endorsement. The jury found that the total amount of the twelve fraudulently endorsed checks was $466,992.71. The jury also determined that Midlantic Bank’s payment of those checks violated the UCC, and assessed resulting damages at exactly the face value of the checks — $466,992.71.
Dean Witter's liability on these counts was established by the following interrogatories and jury answers:
QUESTION 23: Did defendant Dean Witter Reynolds fail to pay to plaintiff any check(s) made payable to plaintiffs on an unauthorized endorsement?
ANSWER: Yes.
QUESTION 24: If answered “yes” what was the total amount of the check(s) involved?
ANSWER: $466,992.71.
QUESTION 25: If # 23 was answered “yes” what if any damages proximately resulted therefrom?
ANSWER: $145,140.00
The discrepancy between the answers to Questions # 24 and # 25 may reasonably be explained by the fact that McAdam had received substantial refunds from Murray. McAdam admitted that he had been paid $162,000.00, and there was evidence from which the jury could have found that he received an additional sum of approximately $155,000.00. These refunds would reconcile the jury’s findings that although the total amount of the checks was $466,-992.71, McAdam’s net loss in the UCC counts was $145,140.00.
It follows inexorably that if McAdam’s net loss on the forged checks was $145,-140.00, then an award in excess of that amount against Midlantic Bank is duplica-tive and not sustainable. Plaintiff attempts to explain this result with two alternative theories. The first is that the payments that McAdam conceded he received from Murray — at least in part — were de*779ducted by the jury in its computation of the damage award for the first or “special investment” claims. There is, however, no support in either the jury charge or the interrogatories for that theory, and it is discredited by the fact that in the UCC counts the jury found Dean Witter liable for an amount different from the face value of the checks. One cannot escape the fact that the jury made a deduction to reach the $145,140.00 award on the UCC counts. There is nothing to support the speculation that the jury made any deduction to reach the figures on the common law counts.
The plaintiff’s second hypothesis is that the offset and the resulting difference in the awards assessed against Dean Witter and Midlantic somehow reflect a jury finding of varying levels of responsibility between the two defendants. This theory is based on Dean Witter’s failure to utilize its Account Executive Check Receipt Forms when checks were drawn on McAdam’s money market account. Properly used, the Forms required the signatures of the account executive, the branch office manager, and the customer himself.
The district court adopted this theory, stating, “[T]he jury could have found that DWR’s failure to utilize its Account Executive Check Receipt Forms ... did not proximately cause all of plaintiffs’ damages visa-vis the forged checks, whereas Midlantic’s failure to follow proper check cashing procedures was a cause of all of plaintiffs’ losses in this regard.” The court did not explain its reasoning, but apparently used some type of comparative fault analysis, which was not, however, included in the charge to the jury.
The plaintiff’s relative responsibility theory makes for interesting speculation, but again there is nothing in the record that would give it credence. Plaintiff contends that the inconsistent awards against Dean Witter and Midlantic Bank show that the jury determined that Dean Witter’s failure to utilize the Forms resulted in only a portion of McAdam’s losses on the forged checks. The district court’s instructions and the interrogatories, however, did not allow the jury to make such a finding.
The court did not charge on relative responsibility for the forged checks as between Dean Witter and the bank. In any event, I find it difficult in the circumstances here to accept any interpretation of jury findings that would grant Dean Witter immunity for part of its misappropriation of the funds entrusted to it.
Putting aside the question of whether an instruction on relative responsibility would have been erroneous, the charge by definition requires allocation of fault between the alleged wrongdoers. Under the plaintiff’s theory, Dean Witter and Midlantic would have to share in the liability for McAdam’s losses on the forged checks. The district court did not reach that result, but entered judgment on the UCC counts against the bank alone.
It is understandable that the jury might not have understood that McAdam’s recovery on the UCC counts — even from the bank — was limited to his loss after crediting what Dean Witter had replaced. The district court’s charge did not take that eventuality into account. The omission was the result of the inability of counsel and the court to anticipate all of the numerous permutations that could result from submission to the jury of multiple, and in some cases, inconsistent theories of liability and damages.
Insofar as the UCC counts are concerned, I would affirm a judgment in favor of plaintiff in the amount of $145,140.00, plus pre-judgment interest, jointly and severally, against Midlantic Bank and Dean Witter. I agree with the majority’s disposition of the remaining issues.