dissenting.
I understand the majority opinion to hold that liability among joint tort-feasors is to be joint and several, rather than several, and that it is to be prorated according to the number of defendants. For the reasons set forth in the opinion, I can agree to joint and several liability, but I cannot agree to pro rata contribution among defendants regardless of their degree of fault. I believe that our decision in State v. Guinn, 555 P.2d 530 (Alaska 1976), controls in allocating liability among defendants in accordance with their degree of fault, rather than in equal shares. In Guinn, we stated:
It is therefore necessary to remand this case to the superior court for a determination of the degrees of fault attributable to Guinn, the State and McGee. .
In summary, consideration of the State’s arguments has led us to the following conclusions. Contributory negligence of the decedent was established as a matter of law. The effect of that negligence should be governed by the doctrine of comparative negligence. It is necessary that this case be remanded to the superior court for the purpose of attributing degrees of fault to the three parties in this litigation.
Id. at 542.
If a plaintiff is unable to collect the percentage share of the judgment from one of *441the defendants, it is only logical that the increased liability of the other defendants should be shared in accordance with their proportionate degrees of fault. See American Motorcycle Ass’n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978). I agree that this method of apportionment is not in accord with the pro rata method of contribution prescribed in Alaska’s statute for apportionment of damages among joint tort-feasors. AS 09.16.020(1). It does conform, however, to the legislative intent of justly apportioning damages among joint tort-feasors and the statutory requirement that “principles of equity applicable to contribution generally shall apply.” AS 09.16.020(3).
In 1970, when the Alaska Uniform Contribution Among Tort-Feasors Act was passed, comparative negligence was not authorized. I believe that the Act should be construed in conformity with its general purpose to permit contribution in accordance with degree of fault, instead of an arbitrary pro rata basis, as the reason for dividing liability equally no longer exists. Without comparative negligence, sharing equally, furnished a rough approximation of a just result. For example, it was certainly preferable when two joint tort-feasors were liable, for them to share equally in paying the damages, than for one to go free simply because the plaintiff elected to recover from the other. Yet such a sharing is far from equitable when one defendant is 90 percent at fault and the other 10 percent. In fact, once comparative negligence is available and assuming that both defendants are responsible, requiring the defendant who is 10 percent responsible to bear 50 percent of the loss, the same amount as the one who was 90 percent at fault, is so arbitrary that it presents a serious question whether constitutional due process rights are violated.1
The California Supreme Court has reached the same result suggested here although applying a rationale based on equitable partial indemnity. See American Motorcycle Ass’n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 195-199, 578 P.2d 899, 912-16 (1978).
I also respectfully disagree with the portion of the opinion which holds that third party defendants in tort actions may not reduce their total liability to the plaintiff in proportion to the percentage of negligence attributable to a plaintiff’s employer. I believe that the amount of a third party defendant’s liability, should be reduced by the employer’s percent of negligence up to a maximum of the employer’s payments of compensation to the employee. Assuming that the third party defendant is 50 percent at fault and the employer is 50 percent at fault, with total damages of $10,000.00 and $5,000.00 paid by the employer under the compensation act, the third party’s liability to the plaintiff would be $5,000.00 rather than $10,000.00. The employer, however, would not be entitled to recover any of the $5,000.00 in compensation benefits paid. The employee would still recover $10,000.00 ($5,000.00 in damages from the third party and $5,000.00 in compensation benefits from the employer).
The opposite result which would follow under the majority’s holding is glaringly inequitable. The third party defendant would be required to pay $10,000.00, although only 50 percent at fault. The employer, who was also 50 percent at fault, would recover his full $5,000.00 previously paid under the compensation act so as to be free of any liability. Not only is the result *442inequitable between the employer and third party, but in the example, the negligent employer is far better off than if no one had been at fault in causing the employee’s injury. If no one were at fault, the employer would incur a $5,000.00 nonrecoverable liability. If the employer and a third party are negligent, however, the employer can recover the $5,000.00 from the amount paid by the third party to the employee.
I do not believe that such an absurd result was intended by our legislature. In my opinion, to permit the employer to recover compensation payments violates constitutional rights to equal protection under Alaska’s Constitution. I respectfully differ from the majority’s analysis of this equal protection issue. The opinion states:
Brown & Root, Inc.’s equal protection claim is based on the differential treatment of tortfeasors who become involved in employee-employer tort claims as compared to all other tortfeasors. Only the former are prohibited from securing pro rata contribution from their concurrently negligent co-defendants, when the co-defendant in question happens to be the employer of the injured plaintiff. Review of equal protection challenges is governed by the standards set out in State v. Erickson, 574 P.2d 1 (Alaska 1978). The purpose of the Workmen’s Compensation Act, including the exclusive liability provision attacked by Brown & Root[, Inc.] in this action, is the provision of financial and medical benefits for victims of work-connected injuries in the most efficient, most dignified, and most certain form. In accomplishing the goal of securing adequate compensation for injured employees without the expense and delay inherent in a determination of fault as between the employee and employer, the legislature apparently also found it necessary to limit the total amount of the employer’s liability to the statutory award. We have concluded that there is a fair and substantial relationship between the legislative objective of providing guaranteed, expeditious compensation to the injured employee and the limitation on the employer’s total liability regardless of its percentage of fault, even though that limitation has the effect of denying the third-party tort-feasors the right to pro rata contribution from the employer, [footnotes omitted]
I agree that there is a fair and substantial relationship between the legislative objective of providing guaranteed expeditious compensation to the injured employee and limiting the employer’s total liability regardless of fault.
As part of this system, it also seems logical not to require contribution from a negligent employer, otherwise the limitation of liability provided by the Workmen’s Compensation statute could be removed indirectly. The majority’s opinion, however, goes far beyond this when it not only bars contribution but actually requires a negligent employer to be reimbursed for any amounts he has paid an injured employee. Such a result does not bear any relation to the necessity for limiting an employer’s liability. In fact, as discussed above, it gives the negligent employer a windfall at the expense of a third party. The right of the employee to recover Workmen’s Compensation benefits is independent of the third party action brought in the state courts. The determination of the employer’s degree of fault is not involved in the compensation proceedings, so even the minimal increase in efficacy of the compensation procedure attained as a result of not requiring evaluation of the employer’s fault bears no relationship to having the employer assume at least a portion of his just share of liability in the third party proceeding. I can see no conceivable relationship between permitting the negligent employer to recover all compensation paid and the over-all purposes of the compensation act. Therefore, the differential treatment of tort-feasors involved in employer-employee tort claims from other tort-feasors cannot be justified to the extent that such tort-feasors are required to indemnify the negligent employer for compensation payments that do not exceed the employer’s share of damages based on his or her degree of fault.
*443I believe that the statute providing for allocation of recovery from third parties may be construed so as to avoid such an unnecessary and unconstitutional result. After authorizing suits by an injured employee, AS 23.30.015 specifies in subsection (g):
(g) If the employee or his representative recovers damages from the third person, the employee or representative shall promptly pay to the employer the total amounts paid by the employer under (E)(1)(A), (B), and (C) of this section, insofar as the recovery is sufficient after deducting all litigation costs and expenses. Any excess recovery by the employee or representative shall be credited against any amount payable by the employer thereafter.
It is only “[i]f the employee recovers damages from the third person,” that the payment must-be made to the employer “insofar as the recovery is sufficient after deducting all litigation costs and expenses.”
Under the solution here suggested, the employee would not recover damages to the extent of his compensation benefits. The employee thus receives the full amount to which he is entitled (damages plus compensation). The recovery, however, does not include any amount for reimbursement of compensation so that the “recovery is [not] sufficient” for the purpose of reimbursing the employer. Admittedly, this is a strained construction of the statute, but we have not hesitated to apply such a liberal construction in the past when necessary to prevent obvious injustice and to accord with what we believe to be the legislature’s intent. See Cooper v. Argonaut Insurance Cos., 556 P.2d 525 (Alaska 1976).
This solution is similar to that suggested by the California Supreme Court in Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 (1961). It does no violence to the exclusive remedy provisions of the Alaska Workmen’s Compensation Act, for the employer would not be required to contribute any more than the amount of compensation benefits for which he or she was already liable under the Act. The quid pro quo by which the employer’s liability would be limited to benefits specified in the compensation act in exchange for making prompt payment to the employee, regardless of fault, would be unaltered. The negligent employer, however, would be unable to recover those payments unless they exceeded the proportion of damages represented by the employer’s degree of fault.2
The solution which I have suggested does not encompass all of the situations which may arise. Until the legislature addresses the problems presented by the third party provisions of our present Workmen’s Compensation statute and other problems arising out of the adoption of comparative negligence, a comprehensive solution is not possible. A reasonable solution to many of the variables suggested by this case are set forth in Associated Construction & Engineering Co. v. Workers’ Compensation Appeals Board, 22 Cal.3d 829, 150 Cal.Rptr. 888, 896, 587 P.2d 684, 692 (1978).3
*444Thus, I would hold that contribution among joint tort-feasors be in accordance with their degrees of fault, although remaining joint and several. I would further reduce the amount of damages assessed against third parties by the amount of compensation benefits paid by an employer up to an amount equal to the employer’s share of damages based on comparative fault.
. In determining a violation of substantive due process, we have applied the test of whether the action is arbitrary or whether the provision has no reasonable relationship to a legitimate state purpose. Mobil Oil Corp. v. Local Boundary Comm., 518 P.2d 92 (Alaska 1974); Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974). It would seem that the only legitimate state purpose for requiring equal contribution is its simplicity. Since we have now authorized comparative negligence, however, that purpose would no longer seem to justify the inequitable result of having defendants pay more than their degree of fault warrants. However, there may be a substantial question as to whether one liable in tort has any constitutionally protected right to contribution from another tort-feasor.
. Similar results have been achieved in other jurisdictions. Pennsylvania allows a third party tortfeasor to secure contribution from a negligent employer limited to the amount of compensation payments the employer has made to the employee. Maio v. Fahs, 339 Pa. 180, 214 A.2d 105, 110 (1940); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836, 840 (1959). North Carolina, instead of requiring limited contribution of a negligent employer, reduces the judgment against the third party by the amount of compensation paid if the third party can show the concurrent negligence of the employer. Brown v. Southern Ry. Co., 204 N.C. 668, 169 S.E. 419, 420 (1933); Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 892 (1953).
. The California court stated;
Applying the principle that the employer and third party should, to the extent consistent with the employer’s statutory immunity from tort liability, share the burden of the employee’s recovery as joint tortfeasors, we conclude that the concurrently negligent employer should receive either credit or reimbursement for the amount by which his compensation liability exceeds his proportional share of the injured employee’s recovery. (See Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 508-509, 145 Cal.Rptr. 608.)
When the issue of an employer’s concurrent negligence arises in a judicial forum, applica*444tion of comparative negligence principles is relatively straightforward. The third party tortfeasor should be allowed to plead the employer’s negligence as a partial defense, in the manner of Witt. Once this issue is injected into the trial, the trier of fact should determine the employer’s degree of fault according to the principles of American Motorcycle. The court should then deduct the employer’s percentage share of the employee’s total recovery from the third party’s liability — up to the amount of the workers’ compensation benefits assessed against the employer. Correspondingly, the employer should be denied any claim of reimbursement — or any lien under section 3856, subdivision (b) — to the extent that his contribution would then fall short of his percentage share of responsibility for the employee’s total recovery.
When the issue of an employer’s concurrent negligence arises in the context of his credit claim based on a third party settlement, the board must determine the appropriate contribution of the employer since the employee’s recovery does not represent a judicial determination of tort damages. Specifically, the board must determine (1) the degree of fault of the employer, and (2) the total damages to which the employee is entitled. The board must then deny the employer credit until the ratio of his contribution to the employee’s damages corresponds to his proportional share of fault. Once the employer’s workers’ compensation contribution reaches this level, he should be granted a credit for the full amount available under section 3861. Only when such level of contribution has been reached, however, will grant of the statutory credit adequately accommodate the principle that a negligent employer should not profit from his own wrong. Id. [footnotes omitted]