(dissenting):
The majority opinion holds that an immune non-defendant should be included in the apportionment of fault to defendants under the Liability Reform Act. I submit that the majority, in direct defiance of the specific language of the Act and its legislative history, completely reverses the intended effect of the Act as to how fault should be apportioned when one of the parties whose negligence contributed to the plaintiffs injuries is immune from liability.
In 1973, the Utah Legislature adopted the Comparative Negligence Act, which abolished contributory negligence as an absolute bar to an action but left intact the doctrine of joint and several liability. 1973 Utah Laws ch. 209. The Liability Reform Act, adopted in 1986, carried forward several provisions from the Comparative Negligence Act but dispensed with joint and several liability. 1986 Utah Laws ch. 199. Under the Act, fault is to be apportioned to each party, with each party bearing liability for its apportioned fault. No party is liable for fault apportioned to another party. Utah Code Ann. § 78-27-40.
The central issue in this lawsuit is how the Legislature intended to apportion the fault of a person immune from liability (a non-party) who is one of multiple tort-fea-sors causing a plaintiffs injuries. The Legislature specifically addressed and resolved that issue. The Act expressly provides that fault shall not be allocated to a party immune from liability. Section 78-27-39 states:
The trial court may, and when requested by any party, shall, direct the jury, if any, to find separate special verdicts determining the total amount of damages sustained and the percentage or proportion of fault attributable to each person seeking recovery and to each defendant.
(Emphasis added.) Thus, fault is to be attributed only to “each person seeking recovery and to each defendant.” The Act then defines the word “defendant” to specifically exclude persons who are immune from liability. Section 78-27-37 states:
As used in Sections 78-27-37 through 78-27-43:
(1) “Defendant” means any person not immune from suit who is claimed to be liable because of fault to any person seeking recovery.
(Emphasis added.) This section makes clear that the term defendant does not include negligent persons who are immune from liability. In short, the Legislature contemplated the issue at hand and expressly provided that fault is to be allocated only among non-immune parties to a lawsuit, even though an immune person may be partly responsible for the plaintiff’s injuries.
Two other sections in the Act not only reinforce, but compel the same conclusion. Section 78-27-41 states that either a plaintiff or a defendant who is a party to the litigation
may join as parties any defendants who may have caused or contributed to the injury or damages for which recovery is sought, for the purpose of having determined their respective proportions of fault.
(Emphasis added.) In connection with that section, § 78-27-39 requires special verdicts, when requested, for determining the fault attributed to “each person seeking recovery and to each defendant.” Both the joinder and special verdict provisions are specifically designed to provide the necessary mechanism for attributing fault only to non-immune defendants (as defined by the Act) and to plaintiffs. Thus, immune persons may not be joined in an action, § 78-27-41, nor may fault be attributed to them, § 78-27-39. The majority’s self-de*886vised requirement that the fault of an immune party must be ascertained simply flouts these provisions.
The purpose of joinder is to determine the non-immune defendants’ “respective proportions of fault” § 78-27-41. The “fault” to be allocated is defined by § 78-27-37(2) as any “actionable breach of legal duty ... causing or contributing to injury or damages.” (Emphasis added.) Because an immune party’s negligence is not an “actionable breach of legal duty,” that negligence cannot be apportioned. In short, an immune party, such as plaintiffs employer in this action, has not engaged in an “actionable breach of legal duty” and therefore is not subject to the special verdict apportionment procedure under the statute.
The Legislature could not have been more explicit and consistent in providing exactly how and to whom fault should be allocated. Indeed, the Legislature expressly rejected the position the majority adopts. Senate Bill 64, which became the Act in issue, initially provided:
The trial court may, and when requested by any party shall, direct the jury, if any, to find separate jury verdicts determining the total amount of damage sustained and the percentage or proportion of fault attributable to each person seeking recovery, to each defendant, and to each other person whose fault contributed to the injury or damages.
(Emphasis added.) The Senate committee report shows that the italicized phrase was purposefully deleted. Left in, that phrase would have done exactly what the majority does today. The majority nevertheless dismisses this compelling piece of legislative history on the transparent ground that it is not clear why the language was deleted.
The Legislature consciously adopted a policy that excluded the negligence of non-immune persons from the fault apportionment process. Asserting that it would be unfair to make defendants bear the fault of an immune party, the majority simply sets aside the judgment of the Legislature as expressed in the explicit statutory language and imposes its own policy. What the majority fails to recognize is that the policy adopted by the Legislature divides the fault of an immune party among both plaintiffs and defendants. The policy adopted by the majority, on the other hand, loads that fault entirely onto a plaintiff.
The legislative policy is neither irrational nor inequitable. Practically speaking, a jury would naturally be inclined to allocate the fault of an immune person among both plaintiffs and defendants. If a plaintiff is 20% at fault, each of two named defendants is 30% at fault, and an immune person is 20% at fault, the Legislature could reasonably assume that a jury would allocate the immune person’s 20% fault among the plaintiff and the defendants, probably according to their respective percentages of “actionable fault.” Thus, there is no reason to assume, as the majority does, that the immune person’s fault will be attributed solely to defendants under Utah's comparative negligence scheme.
The majority position will necessarily result in the entire amount of an immune person’s fault being deducted from a plaintiff's damages. The blatant inequity of that position is especially acute when an immune employer’s insurance company claims all or part of a plaintiff’s recovery by way of subrogation under the Workers’ Compensation Act.
The majority rejects clear and consistent statutory language and its compelling legislative history with the extraordinary argument that “failing to include immune employers in the apportionment violates the main purpose of the Act by improperly subjecting the remaining defendants to liability in excess of their proportion of fault.” I see nothing improper in the legislative scheme. The fact is that it is for the Legislature—not this Court—to decide how to deal with the fault of an immune party in a multi-defendant comparative negligence case.
While it is true that the Act abolishes joint and several liability, that was not its sole purpose. The Act also provides the manner in which fault should be allocated in comparative negligence cases and how the universe of actionable fault should be apportioned when one party is immune. *887As noted, even a plaintiff may be held responsible for a part of an immune person’s negligence under the provisions of the Act. Defining the universe of fault, as the Legislature has done, is not, at bottom, an issue of joint and several liability. Rather, the process turns on the concepts underlying proximate cause.
The existence of fault has always depended upon whether the negligence of a party had a substantial causative connection to a plaintiff’s injuries. Because the law requires only a substantial causative connection, a defendant or defendants may be held legally responsible for causing an injury, even though there are some actual causes for which the defendant or defendants are not responsible. But if a defendant’s negligence is not a substantial cause of the plaintiff’s injuries, then no liability may attach to that defendant. For this reason, proximate cause is defined in terms of substantial causative factors. That point is critical in the policy the Legislature adopted. If an immune person’s negligence is great enough, a jury would be obliged to find that the named non-immune defendants did not proximately cause the injury, even if they were negligent, and thus deny the plaintiff any recovery. But if the immune person’s negligence is not that great, a jury will have to determine the relative proportion of actionable fault attributable to the plaintiffs and the named defendants. In this process, the universe of fault to which the plaintiff and the defendants contributed is the universe of actionable fault.
The damage the majority does to the legislative scheme and to a plaintiff’s rights is exacerbated by the provision in the Workers’ Compensation Act that gives an employer (whose fault may have contributed to a plaintiff’s injuries) a lien against the plaintiff’s damage recovery for benefits paid out of workers’ compensation. Thus, not only is the plaintiff made responsible for the employer’s proportionate share of fault, but he must also reimburse his employer out of his diminished recovery for any workers’ compensation benefits received. This is not only unjust and inequitable, but might well be unconstitutional.
HOWE, Associate C.J., does not participate herein.