dissenting.
While I agree with the majority's analysis of the absurdity created when the general release rule is injected into the comparative fault arena, I must dissent from the result they reach.
As the majority points out, the general release rule was crafted before the advent of Indiana's Comparative Fault Act. The rule is a judicial creation founded on traditional common law principles of negligence. These traditional concepts were updated when the Indiana General Assembly adopted the Comparative Fault Act. As Judge Garrard suggested in his dissent in Young v. Hoke (1986), Ind.App., 493 N.E.2d 1279, trams. denied, such a legislative overhaul requires revision of corresponding judicially created rules.
The policies underlying the creation of the general release rule were twofold. First, the rule was designed to prevent plaintiffs from recovering in excess of their injuries by successively obtaining settlements from different defendants in return for releases. Bellew v. Byers (1979), 272 Ind. 37, 396 N.E.2d 38385. Second, the concept of joint and several liability treats multiple defendants as one entity for purposes of compensating a plaintiff for his injuries. Id. These policies are meaningless in cases involving defendants subject to the Comparative Fault Act and, thus, the general release rule should not apply.
When the remaining defendant or defendants are subject to the Comparative Fault Act, the concept of joint and several liability has been replaced by a scheme that apportions liability to reflect each defendant's percentage of fault attributable to the plaintiff's injuries. IND.CODE 834-4-33-5. When the remaining defendant or defendants are subject to traditional principles of negligence, the concept of partial satisfaction allows remaining defendants a credit for those amounts the plaintiff received from defendants with whom he settled. Indiana State Highway Comm'n v. Morris (1988), Ind., 528 N.E.2d 468. Thus, the plaintiff will not be permitted to recover in excess of his injuries in either case.
In the present case, the fact that the Huffmans titled their settlement agreement with IHSAA a "general release" instead of a "covenant not to sue" or a "covenant not to execute" is the only barrier preventing them from pursuing a claim against MCCSC. Such an exercise in form over substance is contrary to this State's commitment to encourage negotiated settlements. Manns v. State Dep't of Highways (1989), Ind., 541 N.E.2d 929.
I would adopt the analysis of Judge Barker in Gray v. Chacon (S.D.Ind.1988), 684 F.Supp. 1481, which determined that our Comparative Fault Act supersedes the common law general release rule. I would *966reverse the trial court and allow the Huff-mans to proceed against MCCSC.