dissenting.
The verdict form and the verdict in this case were fatally defective. Although settlement was reached with defendant Jack Oakley and the State with reference to liability based on Oakley’s negligence, and although a release and covenant not to sue was given with reference thereto, he was not included on that portion of the verdict form which allocated the percentage of negligence.
The verdict read:
“1. Considering all of the fault that produced the injury to the plaintiffs at 100%, what percentage of the total fault do you attribute to each of the following: “Glen Kinniburgh and The State of Wyoming (0% to 100%)
“55 %
“Peggy Jo Parker (0% to 100%) 5 %
“Dave Thorson and Teton County Sheriff’s Office “(0% to 100%) 40 %
“Clark’s Ready Mix & Construction “(0% to 100%) 0 %
“Susan Dieringer (0% to 100%) 0 %
“Bonnie Roberts (0% to 100%) 0 %
“Connie Mark (0% to 100%) 0 %
“TOTAL 100 %”
If Oakley and the State had been included on the verdict form, the percentage of negligence attributed to them may have considerably reduced that attributed to appellants, with a resulting decrease in the amount of the judgment.
We have recently emphasized the requirement that all participants’ fault must be ascertained, including that of nonparty actors, and even those with whom settlement has been made. Kirby Building Systems v. Centric Corporation, Wyo., 704 P.2d 1266 (1985).1 I need not elaborate on the exhaustive discussion contained therein. It was error to not include Oakley and the State on the verdict form.
In this case, the verdict form itself was not specifically objected to and the issue was not presented to us. Normally, we would, thus, not consider the matter. Rule 51, W.R.C.P.; Anderson v. Foothill Industrial Bank, Wyo., 674 P.2d 232 (1984); Caterpillar Tractor Company v. Donahue, Wyo., 674 P.2d 1276 (1983); Alleman v. Alleman, 78 Wyo. 135, 319 P.2d 871 (1958); Rollins v. Duncombe, 24 Wyo. 341, 157 P. 896 (1916). However, under the circumstances of this case, I believe it is not only proper for us to consider the error, but it is our duty to do so in the interest of justice.
The basis for requiring the objection at the trial level is to allow the trial court to consider and rule on the issue. Dennis v. Dennis, Wyo., 675 P.2d 265 (1984). In this case, there are three reasons for not invoking the propositions that an objection must be made and the issue must be presented to us: One, the problem was before the trial court and, therefore, the reasons for the proposition do not exist; two, the error was with reference to a fundamental right, and we have said that the proposition is not applicable to jurisdiction or other fundamental rights; and three, the error was plain error, wherefore, a review of the error can be had without objection having been made to it.
The potential of fault on the part of Oakley and his status as an actor in this incident were definitely brought to the attention of the court. For example, the complaint named Oakley as a defendant and alleged that his negligence “directly and proximately caused the injuries of the Plaintiff.” A separate answer containing denials and affirmative defenses with ref*18erence to Oakley’s liability was filed by Oakley and the State. Attached to the motion by appellees to dismiss their claims against Oakley and the State was a release and covenant not to sue Oakley and the State for any fault of Oakley, which release read in part:
«* ⅜ * jg understood by the undersigned that this Release reduces their claim against any other tortfeasor by the $22,500.00 consideration paid * *
And the motion was granted. Appellants filed a motion for summary judgment on the grounds that the release of Oakley and the State also released appellants. Appel-lees also released Peggy Jo Parker, driver of the vehicle in which they were riding, from claims arising out of the incident, and she was on the verdict form with the jury allocating five percent fault to her. Also on the verdict form were Clark’s Ready Mix & Construction and Dave Thorson and Teton County Sheriff’s Office, all of whom (Parker, Clark’s Ready Mix, Thorson and the Teton County Sheriff’s Office) were referred to in the instructions as nonparties.
Additionally, this error is indirectly included in the first issue presented to us by appellants. A contention that the release of Oakley and the State operated to release appellant Dieringer and the State will naturally cause attention to be drawn to the verdict to determine the degree of fault attributed to the two of them and the amount received by appellants in settlement for fault of Oakley, which amount should be deducted from the jury award. In this case, the verdict form did not consider the fault of Oakley, and the amount received in settlement from him was not deducted from the award in the judgment. The judgment did deduct the amounts received in settlement with Parker.
The improper conditions of the verdict form and the verdict were before the trial court, and they were sufficiently presented to us under the circumstances of this case. Reversal should result.
Added to the foregoing is the fact that the error concerned the fundamental right of appellants to be responsible, under the comparative-negligence statute, only for their own degree of fault. We have said that we have the “right and duty * * * to decide the cause on a point not raised below where such matter is fundamental.” Steffens v. Smith, Wyo., 477 P.2d 119, 121 (1970). If only five percent of the fault, attributable to appellants, were charged to Oakley, there would be no recovery against appellants.
In any event, we should consider the error as plain error. Rule 7.05, W.R.A.P., provides:
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
“ * * * [W]e [the supreme court] are duty bound to consider an unassigned error under the plain error doctrine as well as our general supervisory powers, where the error is blatant and results in an unmistakable and unconscionable miscarriage of justice. ⅜ ⅜ * ” Sanchez v. State, Wyo., 592 P.2d 1130, 1131 (1979).
There is a duty to invoke the plain error doctrine when the error seriously affects the fairness or integrity of the judicial proceedings. Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Jones v. State, Wyo., 580 P.2d 1150 (1978).
This error is similar to an error caused by failing to join an indispensable party— the failure to join was in the verdict form. Reasoning should be the same in ascertaining the result of the party’s absence.
We have held that the lack of an indispensable party is of such importance that the supreme court may properly raise the question on its own motion. State by and Through Christopulos v. Husky Oil Company of Delaware, Wyo., 575 P.2d 262 (1978). We there quoted from 3A Moore’s Federal Practice, 2d Ed., ¶ 19.05:
“ ‘But the concept of indispensability goes beyond federal jurisdiction and touches the very power or the right of the court to make an equitable adjudica*19tion, where an indispensable party is not before it. In this situation, barring exceptional equities, it should not proceed without his joinder, ***.’” 575 P.2d at 269.
We have also held that failure to object to a defective judgment does not constitute a waiver of such defect. Cates v. Barb, Wyo., 650 P.2d 1159 (1982).
The three-part test to qualify an error as plain error was definitely met in this case: There is a clear record of that which occurred (the verdict form is before us), a clear and unequivocal rule of law exists (see Kirby Building Systems v. Centric Corporation, supra, and the Wyoming cases cited therein), and a substantial right was affected (appellants’ degree of negligence could have been different). See Hopkinson v. State, Wyo., 664 P.2d 43 (1983); Mason v. State, Wyo., 631 P.2d 1051 (1981).
My position, supra, would make more equitable the majority’s decision to limit the release of Oakley, as it applied to the State, only to employee Oakley’s fault and not to employee Kinniburgh’s fault. However, I need not address the problem of there being a single injury with the resulting liability to be measured from that standpoint. A correct verdict form recognizes this fact.
ADDENDUM
Justice Brown and Justice Rose each have circulated a specially concurring opinion in response to this dissent.
In his opinion, Justice Brown would make it unnecessary to place a defendant on a verdict form in a negligence case if there was no evidence introduced as to his negligence2 — this to be done absent his removal from the case by virtue of a summary judgment in his favor (as occurred in ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981) — the case cited by Justice Brown to support his contention) and absent the granting of any other motion removing him from the case.
Such a precedent will really confuse the orderly procedure relative to the proper presence of a party in a lawsuit and relative to the factual determination of negligence by the jury.
I not only disagree as to the premise for Justice Brown’s argument, but I disagree with the conclusion even if the premise were correct.
Justice Rose’s opinion is also flawed. He finds some kind of waiver on the part of the defendant in not insisting that all participants be included on the verdict form. Justice Rose thus finds a waiver of plain error. Plain error is inconsistent with waiver. Justice Rose’s argument, if valid, would apply to all of those cases decided by this court in the past on the basis of the presence of plain error. I have set out above the factors which we have said must be present for plain error, and I have designated wherein they are all present in this ease.
Additionally, the argument presented by Justice Rose to justify the failure to include participants Oakley and the State on the verdict form is inconsistent with his argument that the settlement amount received from Oakley and the State should be acknowledged and the judgment be reduced accordingly. Either there was a waiver by the parties for all involvement of Oakley and the State through an acceptance of the verdict form or there was not.
The facts and errors in this case are plain; there should not be any effort of rationalizing or justifying them.
I would reverse and remand for a new trial.
This case was assigned to Justice Thomas on March 22, 1984. He circulated the proffered opinion on August 1, 1985. The dissenting opinion without the addendum was circulated on August 7, 1985. Justice Brown circulated his specially concurring opinion on September 5, 1985. Justice Rose circulated his specially concurring opinion on September 6, 1985. The addendum to this dissenting opinion was circulated on September 9, 1985.
. My dissent in Kirby was with reference to another issue.
. The evidence relative to Oakley’s duty to attend to the spreading of gravel on highways and to his failure to perform such duty was part of plaintiffs case against Oakley and the State. A settlement was made with Oakley for $22,500, and he was given a release. It is difficult to understand how he can be considered a nonparticipant.