specially concurring.
The majority opinion does not address the effect on this appeal of the defendants’ failure to fully assert their rights under the comparative-negligence statute, § 1-1-109, W.S.1977, and the contribution-among-joint-tortfeasors statutes, §§ 1-1-110 through 1-1-113, W.S.1977, even though Justice Rooney, in his dissenting opinion, treats these omissions as plain errors requiring reversal. While I cannot adopt the dissenting position that a possible misapplication of the comparative-negligence law amounted to plain error, I agree that the judgment in this case should be modified further to reflect the amount of consideration paid to appellees in the settlement of their claims against Jack Oakley and the State of Wyoming.
Comparative Negligence
Wyoming’s comparative-negligence statute, § 1-1-109, W.S.1977, provides in part:
“(a) Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence was not as great as the negligence of the person against whom recovery is sought. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.
“(b) The court may, and when requested by any party shall:
“(i) If a jury trial, direct the jury to find separate special verdicts; * * * ”
When the plaintiff’s negligence is at issue in a case, the jury, in arriving at its verdict, must ascertain the percentages of fault of all of the participants to an occurrence, including non-parties who settled with the plaintiff. Kirby Building Systems v. Mineral Explorations Company, Wyo., 704 P.2d 1266 (1985); Board of County Commissioners of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, reh. denied 627 P.2d 163 (1981). These determinations by the jury permit an accurate comparison of the plaintiff’s contributory negligence, if any, with the negligence of each of the defendants in the action:
“ * * * Logic dictates that, if the negligence of an actor who is not a party is not included in the comparative-negligence calculation, the percentage of negligence of defendants who are parties may be inflated, and this would have a detrimental impact upon the comparison of the fault of the plaintiff and the several defendants in reaching a determination as to liability of some or all of the defendants to the plaintiff.” Kirby Building Systems v. Mineral Explorations Company, supra, 704 P.2d at 1272-3.
In the case at bar, the defendants, G.M. Kinniburgh and the State of Wyoming, did not request the trial court to place the settlor Jack Oakley on the verdict form for the jury’s consideration. Nor have the defendants raised the issue of a defective verdict form on appeal. It is reasonable to conclude, therefore, that the defendants did not consider Oakley to be a participant to whom the jury properly could assign a proportionate share of the total causal negligence.
*14For purposes of discussion, however, I will assume that Oakley was an actor who should have appeared on the verdict form to permit an accurate determination of the parties’ relative degrees of negligence. The question, therefore, becomes whether the failure of the court to instruct the jury to ascertain the negligence of participant Oakley amounts to plain, reversible error.
The Wisconsin Supreme Court resolved a similar question in Patterson v. Edgerton Sand & Gravel Co., 227 Wis., 277 N.W. 636 (1938).1 The court held that the defendants had waived their right to have the jury determine the negligence of a nonparty, since no request was made of the trial court:
“Defendants also contend that the issue as to comparative negligence was not properly submitted because the jury was not directed by either the form of the questions or the court’s instructions to include negligence on the part of [non-party] Finley with that of [defendant] Wescott and the plaintiff in finding the proportion of the total causal negligence attributable to each of them, as is required under Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721, 92 A.L.R. 680 [1934]. However, the record herein discloses that the defendants are not entitled to a reversal on that ground for the following reasons: They did not request the submittal of any question to the jury, or the giving of any instruction in respect to the inclusion of negligence on Finley’s part in the total negligence which the jury was to take into consideration in finding the proportions of causal negligence attributable to Wescott and to the plaintiff, respectively. In the absence of any such request and any finding by the jury on that subject, there is applicable the rule that, ‘When some controverted matter of fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, such matter of fact shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on such matter shall be deemed a waiver of jury trial pro tanto.’ [Citations.]” 277 N.W. at 640.
We have applied similar reasoning to conclude that a defendant must timely exercise his right to file a third-party complaint or the right is waived. Pickett v. Associates Discount Corporation of Wyoming, Wyo., 435 P.2d 445 (1967). I see no reason to apply a different rule when the defendant, for whatever reasons, fails to include all of the participants to an occurrence on the verdict form. The defendant bears the responsibility for structuring his own defense, and his failure to avail himself of a possibly advantageous procedure or defense theory does not constitute grounds for reversal.
Contribution Among Joint Tortfeasors— The Effect of a Release or Covenant Not to Sue
Section 1-1-113, W.S.1977, of the contribution-among-joint-tortfeasors statutes concerns the effect of a release or covenant not to sue given in good faith to one of multiple tortfeasors:
“(a) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death:
“(i) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
*15“(ii) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”
We analyzed the contribution-among-joint-tortfeasors statutes in Bjork v. Chrysler Corporation, Wyo., 702 P.2d 146 (1985), and said that the statutes and the release document must be considered together as constituting the entire agreement of the parties. We said that, under § 1-1-113, a release no longer extinguishes the plaintiffs claim against the remaining tort-feasors, as was the ease at common law. Instead, the release reduces the claim against the other tortfeasors to the extent provided by the terms of the release or the amount of consideration received, whichever is the greater. 702 P.2d at 151.
Appellees in the case at bar executed a release in favor of Oakley and the State of Wyoming. This release is contained in the record and provides in part:
“ * * * It is understood by the undersigned that this Release reduces their claim against any other tortfeasor by the $22,500.00 consideration paid * * * ”
Under the terms of the release agreement and the provisions of § 1-1-113, appellees settled their cause of action to the extent of $22,500 and retained the right, subject to other settlement agreements, to enforce the remainder of their claim against the other tortfeasors. The jury, following trial, determined the appellees’ total damages resulting from the tortious incident. The court, in entering judgment on the verdict, deducted the amount received by appellees under their settlement agreement with driver Peggy Jo Parker, but did not deduct the amount of consideration received from Oakley and the State of Wyoming. The question arises as to whether this court, in the absence of any request from appellants, should direct modification of the judgment to reflect the amount received in settlement from Oakley and the State of Wyoming.
The Ninth Circuit Court of Appeals faced a related issue in Layne v. United States, 460 F.2d 409 (9th Cir.1972). That court was asked to interpret Alaska’s settlement statute which tracks § 1-1-113 in all aspects pertinent here and, like our enactment, derives from § 4 of the Uniform Contribution Among Tortfeasors Act. The court held that the failure of the defendant United States to formally raise the issue of the settlement agreement at trial did not deprive it of the right to a reduction in the damages award by the amount paid for the release:
“[Plaintiff] Layne admits the applicability of the [Alaska Uniform Contribution Among Tortfeasors] Act, but claims that the United States cannot rely on Section 09.16.040 [pertaining £o releases and covenants not to sue] because it failed to raise the issue during the trial by placing the settlement in evidence and showing that the released defendant Wickersham, was in fact a joint tortfeasor. That Wickersham was not ‘one of two or more persons liable in tort for the same injury,’ Layne contends, is demonstrated by the court’s specific finding that the accident and Layne’s resulting injuries ‘were caused solely by, and were the direct and proximate result of, the negligence of the ... United States of America.’
“Layne misapprehends the purpose and effect of § 4 of the Uniform Act. While § 4 changed the common law in one respect (i.e., by providing that release of one joint tortfeasor does not automatically release the other joint tortfeasors), it retained that part of the common law rule embodying the sound public policy of permitting a plaintiff to receive only the amount of his adjudged damages and no more, regardless of the source of the recovery. Since the principle is that there can be but one satisfaction for the same injury, whether or not the released party is in fact jointly liable with the defendant against whom a judgment is rendered is not relevant. In either case, to prevent recovery by plaintiff of more than his legitimate damages, ‘the amount paid for the release or covenant not to sue must reduce pro tanto the injured person’s judgment against another. Prosser, Law of Torts, 2nd Ed., Sec. 46, p. 246; 109 Pa.L.R. 311, 313; *16Holland v. Southern Public Utilities Co., 208 N.C. 289, 180 S.E. 592, [1935] and cases cited; Jacobsen v. Woerner, supra, 149 Kan. 598, 89 P.2d 24, [1939] and cases cited.’ Steger v. Egyud, 1959, 219 Md. 331, 149 A.2d 762, 767-768. [1959] (applying New Jersey law).
⅜ ⅝ ⅝ ⅝ ⅝ ⅝
“The settlement between Layne and Wickersham was part of the record before the trial court in this case. The trial judge discussed the settlement with attorneys for all parties at length, in open court. In such circumstances it would have served no useful purpose for the United States to formally offer the settlement into evidence and we do not require that it be done. Layne’s award of damages against the United States should therefore be adjusted downward by $50,000 * * (Emphasis added.) 460 F.2d at 411.
Courts in other jurisdictions have applied similar reasoning in directing the reduction of a damages award to prevent “unjust enrichment” to the plaintiff, Clark v. Brooks, Del.Super., 377 A.2d 365, 369 (1977), or to bar the plaintiff from obtaining double recovery. Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956).
Appellees in the case at bar received $22,500 pursuant to their settlement agreement with Oakley and the State of Wyoming. Under § 1-1-113, they retained the right to bring suit against the nonsettling tortfeasors for additional compensation of their injuries. Appellees do not possess a right to recover an amount in excess of their damages as determined by the jury. Therefore, in addition to the modifications approved by the majority, I would have reduced the judgment by the amount of the consideration received by appellees in settlement of their claims against Oakley and the State of Wyoming.
. Wyoming’s comparative-negligence statute derives from the Wisconsin statute. Woodward v. Haney, Wyo., 564 P.2d 844 (1977). We have previously concluded that the legislature intended to adopt the Wisconsin judicial construction of the act as of 1973, the date of enactment in this state. Board of County Commissioners of County of Campbell v. Ridenour, supra; Woodward v. Haney, supra.