concurring in the Court’s judgment and specially concurring.
I concur in the Court’s judgment under the principle of stare decisis in view of the Court’s decision in Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979) — a decision from which I vigorously dissented. I hold to the views set forth in my Tucker dissent and reiterate them in part today for the benefit of the bench and bar:
“While I concur with the major holdings of the Court’s [Tucker\ opinion, I am persuaded that this Court should not blindly accept the unfortunate ‘no double recovery’ language of Witt as a basis for a new rule of law that an injured employee’s damages awarded against a third-party tortfeasor must in all instances be reduced by the amount of workmen’s compensation he has received. The Court did not do so in Liberty Mutual Insurance Company v. Adams, 91 Idaho 151, 417 P.2d 417 (1966), where Witt was first considered and applied, but on the contrary did allow the employee a ‘double recovery’ — a loosely used term which is quite at odds with reality.
“The sole issue in Liberty Mutual was whether a negligent employer, whose negligence along with that of a third party produced the injury, could obtain from an injured employee reimbursement of workmen’s compensation benefits paid, the employee having recovered from the third party in a negligence action for damages. The Court answered in the negative, holding that the negligent employer and its surety Liberty Mutual could not so recover. The so-called ‘double recovery’ remained with the injured employee.
“While it is correct that the Court in Liberty Mutual relied upon Witt for the proposition stated at page 156 of 91 Idaho, at page 422 of 417 P.2d,2 the Court did not at all adopt, approve, or even mention the further statement of Witt that a reduction of the employee’s damages awarded in a suit against the third-party tortfeasor must be made so as to avoid the allowance of a double recovery. Witt, 17 Cal.Rptr. at 378, 366 P.2d at 650. Moreover, on many readings of Witt I remain unable to find in that opinion anything whatever substantiating that statement. It was a mere unreasoned gratuity which the court apparently made in distinguishing the facts in Witt from the facts in Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633 (1944), discussed in Witt, 17 Cal.Rptr. at 377-378, 366 P.2d at 649-50.
“Recognition must be given to the fact that the statutory scheme since its enactment in 1917 gave the employer subrogar tion rights. This, however, has nothing to do with the question of whether an employee who obtains industrial accident insurance compensation and thereafter successfully maintains a negligence action against a third-party tortfeasor is somehow gaining a ‘double recovery.’ It illustrates only a disposition on the part of the legislature to favor the employer (in reality the employer’s surety) by affording an opportunity to come out harmless — notwithstanding that the injured employee’s claim for compensation benefits may have been vigorously resisted. It becomes necessary to pause and reflect upon what had happened in 1917.
“The enactment of Idaho’s Workmen’s Compensation Law took away the right of a workman in Idaho to seek damages for injuries occasioned by the negligence of his employer, and in return he was provided specific compensation, which until recently has been totally inadequate, and now is just barely adequate. The legislative scheme was to accomplish this through a ‘no-fault’ insurance program, where the compensation awards would be made by insurance companies who would in turn accept premiums in return for assuming the risks of loss. The legislature, if it considered that the employee might receive from his employer some sum of money with which to purchase such workmen’s insurance and pay the premium, instead directed the employer to procure the insurance and pay the premium. The working man, having involuntarily lost his common law cause of action for injury, became the beneficiary of these policies of industrial *247accident insurance. [Footnote omitted.] The legislature perceived that it was not only wise that the working man not be entrusted with purchasing his own industrial compensation coverage, but that he should pay back what benefits he received if he was able to effect a recovery from a third-party tortfeasor. This payback was never said to be, however, on the theory that a working man should not be able to collect both insurance benefits and damages occasioned him by the third-party tortfeasor — but on the more readily acceptable and less obvious theory, well known in the insurance industry, that an insurance company which has paid benefits always wants to be subrogated to the employee’s rights to the extent of payments made. The Idaho legislature, as with others, so arranged it. In no instance did the legislatures of any of the states including Idaho consider that such subrogation provisions indiscriminately awarded subrogation rights to negligent as well as to non-negligent employers. All of which is to say that ‘double recovery’ was not involved, and is still not involved. Double recovery is involved where a person injured collects damages twice. Where a person’s injury is caused by two or more joint and several tortfeasors it has ever been the law that a satisfied judgment against any of those responsible is a bar to a second action against the others. Damages, of course, are no part of the Workmen’s Compensation Law. Damages for tort are supposed to justly compensate the victim — make him whole as it were. It has never been pretended that specified compensation under the Workmen’s Compensation Law even approach making the injured worker whole. In fact, the major underlying premise of the Workmen’s Compensation Law is to take from the working man his common law right to sue in tort for damages, and relegate him to the status of an insured under a policy which picks up his medical expenses, gives him a modest weekly stipend while he mends, and an equally modest specific award for the permanent injury. Such does not amount to damages. Payments received from industrial insurance should not be regarded any differently than payments which an injured workman receives from a health and accident policy which he has purchased full well knowing of the inadequacy of industrial insurance. Such payments are insurance benefits, and in no sense are they damages for tort.
“... It would be a travesty indeed to hold that the disqualification of the negligent employer should somehow inure to the benefit of the negligent third-party tortfeasor. I neither know of nor can divine any principle of law which requires that an injured employee must to the extent of payments received elsewhere suffer a reduction of the tort damages he has obtained against a negligent third-party tortfeasor. A question of double recovery it is not. While the tortfeasor, or tortfeasors, should not be required to pay damages twice for the same injury, he or they should not be given the benefit of payments to the injured person which he or they did not make. This is the collateral source doctrine.
"... If it is thought to be inequitable that the injured employee have the benefit of this so-called double recovery, as against the third party having it, the language of Justice White in Edmonds v. Compagnie, supra, [443 U.S. 256] 99 S.Ct. [2753] at 2762 [61 L.Ed.2d 521] is appropriate: ‘Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect.’
“A clear-cut principle of law evolved from the Court’s unanimous holding in Liberty Mutual; by virtue of that decision the statutory law was modified to prevent a negligent employer from recovering back compensation payments whether it might attempt to do so from the injury employee or the negligent third party. Today the issue is presented in a slightly different context — with the negligent third party wanting the benefit of those payments which the negligent employer by virtue of *248Liberty Mutual may not regain. The answer should be exactly the same as it was in Liberty Mutual and as forecast by the Court’s language in the non-negligent employer case of Shields v. Wyeth. A so-called balancing of the equities does not require that the negligent third-party tortfeasor be given the windfall apples which have fallen from the tree of the negligent employer.
“ ‘It is of significance that, in the case at bench, we are not really talking about the rights and obligations between an employer and third party directly. On the contrary, we are deciding the rights and obligations between an employer’s insurance carrier and a third party’s insurance carrier. Each insurance company has been paid premiums for undertaking the risks involved. It is neither the employer nor the third party who suffers by virtue of any shifting between the insurance carriers of the responsibility for specified percentages of the damages suffered by the injured employee. Most employers are business entities. The cost of insurance premiums is a cost of doing business which is passed on to the customers of the business. Most third-party tortfeasors are also business entities in which the cost of insurance premiums represent part of the cost of doing business that is paid for by the customers of these entities. Thus, the amount of damages to the injured employee that is paid by the insurance carriers for the employee and the third party is in reality financed by the customers of the employer and the third party. The costs of the awards to injured workers are spread, therefore, among a substantial segment of society.’
Associated Construction & Engineering Co. v. Workers’ Compensation Appeals Board, 22 Cal.3d 829, 150 Cal.Rptr. 888, 909, 587 P.2d 684, 705 (1978) (Jefferson, J., dissenting).
“A majority vote of the Court membership is, of course, sufficient to change the law. Although Liberty Mutual v. Adams antedated my time on the Court, it was in my opinion a well written opinion, joined in by a unanimous Court, and soundly bottomed on the proposition that in this state no one should profit by his own wrong.
“Unfortunately it was destined to a short life, and I am saddened to observe its demise. I more deeply regret that it is laid to rest without the comfort of any epitaph appropriately recognizing that it has now been overruled. Perhaps solace may be found that Idaho is now brought back into line with a clear majority of forty-eight other states which prefer to talk in terms of ‘double recovery’ to the end that, where a so-called windfall is to be had, the worker in Idaho must give way either to the negligent employer or to the negligent third person.”
2""'Thus, whether an action is brought by the employer or the employee, the third party tortfeasor should be able to invoke the concurrent negligence of the employer to defeat its right to reimbursement, since, in either event, the action is brought for the benefit of the employer to the extent that compensation benefits have been paid to the employee.’"” (My emphasis.)
100 Idaho at 606-13, 603 P.2d at 172-179 (Bistline, J., dissenting) (emphasis original).