(dissenting).
I respectfully dissent. Nothing in the joint and several liability statute or the UIM statute precludes the application of joint and several liability to a determination of whether a vehicle is underinsured. In fact, the 1989 legislative changes to Minn.Stat. § 65B.49, subd. 4a, indicate the focus of the UIM statute is providing the fullest possible compensation to an injured party. Applying joint and several liability here would serve this end by compensating Lahr for her damages as determined by a jury.
I acknowledge that joint and several liability has the effect of shifting Peura’s liability onto Kivisto. But unlike in Thommen and Myers, which both involved a single at-fault driver, here we have multiple tortfeasors. Peura has no incentive to purchase cheaper UIM coverage in place of more expensive liability coverage based on another vehicle being underinsured. Therefore, the policy of Thommen and Myers, it seems, does not extend to these facts.
In Johnson, the supreme court indicated joint and several liability applies in the context of a UIM claim. 426 N.W.2d at 423. While the 1989 legislative changes to the UIM statute have altered the supreme court’s conclusion in Johnson, Johnson’s reasoning on joint and several liability is still valid. As the supreme court made clear in Richards, a UIM claim looks to the damages the insured is “legally entitled to recover” from the tortfeasor. 518 N.W.2d at 28. Additionally, the term “actual damages” as used in the statutory definition of underinsured motor vehicle means the “total” liability of the tortfeasor. Id.
Here, the formula applied by the district court is precisely how Kivisto’s total tort liability would be determined without regard to a UIM claim and without regard to the settlement posture of this case. Thus, in applying joint and several liability, Lahr would be legally entitled to recover from Kivisto four times Kivisto’s percentage of fault in order to compensate Lahr’s actual damages. Accordingly, I would affirm the district court and hold the Kivisto vehicle underinsured.