dissenting.
I must respectfully disagree with the majority’s analysis and disposition of this case.
One the principal issue, whether the trial court correctly aggregated the negligence of Coast and Coleman, I would prefer either one of two positions to that taken by the majority.
(1) I would overrule Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980) wherein this Court adopted the “individual rule” and adopt the “unit rule” or “combined comparison of negligence” approach; or
(2) I would reverse and remand for new trial because the deficiencies in the instructions rendered them totally confusing that a fair trial and valid verdict was impossible. On the award of sanctions, for improper argument of counsel, I would affirm in concept but reverse for appropriate fixing of damages.
I
THE FACTS
Since the majority opinion is somewhat selective in the factual background it presents, I restate them.
Coleman Company, Inc. (Coleman) and its wholly-owned subsidiary, Coast Catamaran Corporation, (Coast) appeal the trial court’s award of judgment against them premised upon the trial court’s entry of a special finding pursuant to I.R.C.P. 49(a) that their negligence be aggregated by virtue of their status as joint venturers. Coleman and Coast also appeal the trial court’s award of attorney fees to Michael Ross as a sanction for defense counsel’s violation of an order in limine and alleged failure to conduct settlement negotiations in good faith.
The underlying facts and procedural history of this case are as follows: On June 22, 1984, Michael Ross and Kathryn Sateren were sailing in a Hobie Cat sailboat at Magic Reservoir in Blaine County. As they sailed toward shore, the metal mast of the boat struck an Idaho Power power line. Ross suffered electrical bums requiring the later amputation of both legs below the knee, and Kathryn Sateren was electrocuted.
Michael Ross filed suit against Coleman Company, Inc. and its wholly-owned subsidiary, Coast Catamaran Corporation, which designed and manufactured the boat, as well as Idaho Power Company, which had been responsible for the placement of power lines. The evidence presented at trial centered on the availability and feasibility of manufacturing a plastic, nonconducting “comptip,” designed to be inserted at the top of the metal mast to prevent accidents of the kind which occurred in the instant case. Evidence was also presented showing that forty-nine similar accidents, resulting in forty deaths and forty-four severe injuries, had occurred in recent years.
The evidence further showed that, in response to these accidents, Coast and Coleman began searching for solutions to the problems of contact between Hobie Cat masts and power lines in 1978, two years after Coleman purchased Coast. Coast and Coleman worked in concert to find a solution. Specifically, an engineer from the O’Brien Company (another wholly-owned subsidiary of Coleman), Jerry Pollard, moved from O’Brien to Coast to work on the comptip in 1982. Pollard continued to confer regarding the potential for development and manufacture of the comptip with an O’Brien engineer, Bob Eller, until 1984, when O’Brien was able to manufacture the first comptips for the Hobie Cat masts.
Testimony was given regarding the relationship between Coleman and Coast. Coast’s president, Ian Douglas Campbell, stated:
Coast Catamaran Corporation is a wholly-own (sic) subsidiary of the Coleman Company. Coleman sets up its overall corporate operations by having separate divisions of subsidiaries. We’re known as the Hobie Division within the Coleman Company.
Each of these divisions is given a great deal of autonomy by the corporation to run our own business for the specialized markets that we work in.
The president of Coleman Company, Larry Jones shed further light on the relation*841ship between Coleman and Coast as he testified regarding the authority Coleman possessed over the comptip development project:
We owned all of the stock of Coast Catamaran by that time. We could have done anything that we felt to be that we wanted.
Q. So you could have called Doug Campbell, [the president of Coast Catamaran] said this is Larry Jones, and I don’t want you to produce any more of those Hobie 16’s until we get this problem solved with the mast.
A. I think that would have been going a little too far to me, but I certainly could have initiated that and sought the approval of Mr. Coleman and the board of directors and so instructed, and did not, that is correct.
Coleman Company brochures which listed the Hobie Cat as one of many “Coleman Company products” were also admitted into evidence.
Additional to the evidence centering on the relationship between Coast and Coleman was evidence showing that the power lines Ross hit were only twenty-six feet above the water, fourteen feet below the forty foot standard adopted by the Idaho Power Company in 1977. The low lying lines were discovered by an Idaho Power engineer in 1978, but were neither reported nor relocated. Prior to trial, Idaho Power settled with Michael Ross.
Ross filed a motion in limine to preclude any mention of the.settlement with Idaho Power before the jury. Judge Bruce granted the motion, ruling that defense counsel could not mention the settlement agreement without first making an off-the-record offer of proof as to a particular, valid need to disclose the agreement. However, during his closing argument, defense counsel mentioned the settlement agreement between Ross and Idaho Power in the following words: “Mr. Ross has settled with the power company and they are suing Coast and Coleman and the message is clear, it isn’t compensatory damage that is really the issue, it is either exaggerated compensatory figures or punitive figures----” “The power company has admitted its negligence. They sat up here on this stand and admitted it and they’ve settled and they’re not here.” “Yes, there was negligence on the part of the power company, and yes, there was causation, and it was 100% of the causation. That would be a logical result in this case____” Defense counsel further alluded to the prospect of “two punitive figures” and a possible “windfall” award to plaintiff.
The jury returned a verdict assessing 75% negligence to Idaho Power, 10% to Michael Ross, 10% to Coast Catamaran Corporation and 5% to Coleman Company, Inc. The jury also assessed Ross’s damages suffered at $2,662,376. Ross then moved for a new trial, or alternatively, for judgment in his favor and against defendants by way of aggregation of the 10% and 5% negligence of Coast and Coleman respectively, and further moved for an award of attorney fees against defendants.
The trial court made a special finding that Coast and Coleman were joint venturers engaged in a composite business enterprise and, therefore, aggregated the negligence of the two companies, awarding Ross $399,356.40 (15% of the jury’s finding of damage). The trial court also granted Ross’s motion to award costs and attorney fees due to its “overwhelming belief that the order prohibiting settlement argument was willfully, consciously, and deliberately violated [by defense counsel]” and due to its finding that defense counsel had failed to conduct settlement negotiations in good faith. Attorney fees in the amount of $100,000 were imposed as sanctions pursuant to I.C. § 7-601(5). Additionally, costs as a matter of right in the sum of $17,-743.17, as well as discretionary costs in the amount of $25,000 were awarded to Ross. At issue on appeal is the propriety of the aggregation of negligence of Coast and Coleman and of the sanctions awarded against defendants for the alleged misconduct by defense counsel.
II
THE AGGREGATION OF NEGLIGENCE
I would affirm the trial court's aggregation of the negligence of the two party *842defendants, Coast and Coleman, and adopt the “unit rule” or “combined comparison of negligence” approach when comparing the plaintiff’s negligence to that of the defendants under Idaho’s comparative negligence system. In so doing, I would overrule that portion of our opinion in Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), where we adopted the “individual rule” requiring that, when comparing percentages of negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover.1
In Odenwalt, we stated our rationale for adopting the “individual rule” as being, in part, to comport with Wisconsin’s interpretation of its identical comparative negligence statute and, in part, because of our perception that the unit rule “frequently achieves a harsh and unjust result.” Id. 102 Idaho at 5, 624 P.2d 383. Specifically, we cited the following example:
It would be incongruous to suggest that where there is one defendant and one plaintiff, and both are found to be equally negligent (50%), the plaintiff recovers nothing; but where there are two defendants and one plaintiff, and all three are found to be equally negligent (33%%), the plaintiff may recover 66%% of his damages from either defendant.
102 Idaho at 5, 624 P.2d 383.
This hypothetical posited in Odenwalt reflects not just consternation with the “unit rule,” but more specifically reflects a profound and fundamental disagreement with the entire concept of joint and several liability. The “unit rule” generally limits a defendant’s liability to his proportionate negligent causation of plaintiff’s total damage. It is only when one defendant is insolvent that any “harshness” or “injustice” to another defendant might ensue.2 In that case, another defendant may be called upon to assume the obligation of the other. It is not the “unit rule”- which mandates such a result, but the age-old concept of joint and several liability. As the Pennsylvania Supreme Court has stated:
Any unfairness that results when a tort.feasor cannot be made to pay his proportionate share of the damages is a product of the joint and several liability doctrine. It does not result from applying the “combined comparison” [unit] rule.
Elder v. Orluck, 511 Pa. 402, 515 A.2d 517, 525 (1986).
Finally, given that instances where one defendant is forced to pay disproportionately are remote, it seems more “harsh and unjust” to deny recovery to many plaintiffs who, unfortunately, are injured by more than one defendant. Indeed, the commentators routinely favor the “unit rule” or “combined comparison/aggregate” approach, “on the ground that plaintiff’s chance of recovery is not jeopardized by the fact that several tortfeasors happen to be involved.” V. Schwartz Comparative Negligence 2nd Edition, § 16.6, p. 271. See *843also, Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 507 (1953). See, Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 207 N.W.2d 706 (Minn.1973), wherein defendant driver of a highway department truck directed the defendant driver of an ambulance to turn left, whereupon the ambulance collided with plaintiff. The jury found all three parties thirty-three- and-one-third percent negligent and, under the individual rule, the court held that plaintiff had no right to recover. Because there were two defendants, rather than one, a plaintiff whose negligence was less than fifty percent of the cause of his own damage was denied a recovery in tort.
For the above reasons, a substantial majority of states have, either through statute or case law, adopted the unit rule. See, Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962), Ark.Stat.Ann. § 27-1765; Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo.1983); Conn.Gen.Stat.Ann. § 52-572h; Del.Code Ann. tit. 10, § 8132; Hawaii Rev.Stat. § 663-31(a), Wong v. Hawaiian Scenic Tours, Ltd., 64 Hawaii 401, 642 P.2d 930 (1982); Ind.Code § 34-4-33-4; Iowa Code, § 668.3(1); Kans.Stat.Ann. § 60-258a(a); Prince v. Leesona Corp., Inc., 720 F.2d 1166 (10th Cir.1983) (applying Kansas law); Negley v. Massey Ferguson, Inc., 229 Kan. 465, 625 P.2d 472 (1981); Mass.Gen.Laws Ann. ch. 231, § 85; Nev.Rev.Stat. § 41.141(1); Hurley v. Public Service Co., 123 N.H. 750, 465 A.2d 1217 (1983); N.J.Stat.Ann. § 2A: 15-5.1; Ohio Rev.Code Ann. § 2315.19 A(1); Okla. Stat.Ann. tit. 23, § 13; Laubach v. Morgan, 588 P.2d 1071 (Okla.1978); Oregon Rev.Stat. § 18.470; Pa.Stat.Ann. tit. 42, § 7102; Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986); Jensen v. Intermountain Health Care, Inc., 679 P.2d 903 (Utah 1984); Vt.Stat.Ann. tit. 12, § 1036; Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); North v. Bunday, 735 P.2d 270 (Mont.1987).
The most recent state to adopt the “unit” or “combined comparison” rule, Montana, did so in North v. Bunday, 735 P.2d 270 (Mont.1987). The court considered several factors, including interpretation of its comparative negligence statutes, the policy of the state in comparative negligence cases and the concept of fundamental fairness. Specifically, the court in North noted language in its negligence statute which provides that “contributory negligence shall not bar recovery in an action ... if such negligence was not greater than the negligence of the person against whom recovery is sought____” M.C.A. § 27-1-702. The court then noted M.C.A. § 1-2-105 which provides: “The following rules apply in this code: ... (3) The singular includes the plural and the plural the singular.” The North court then cited to Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo.1983) to reach its determination that the wording of its negligence statute did not compel the use of the “individual rule.” “If the general assembly truly intended the phrase “the person” to exclude the plural, then it could have unambiguously provided for that result by using the phrase “each individual person.” 660 P.2d at 886. See also, Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 908 (Utah 1984). Finally, having concluded that the “individual rule” was not statutorily mandated, the North court found the “unit rule” more in keeping with the standard purposes behind legislative enactment of a comparative negligence system (i.e., to ameliorate the harshness of the system of contributory negligence) as well as more in keeping with fundamental notions of fairness.
In his dissenting opinion in Odenwalt, Justice Bistline employed a similar approach in analyzing the Idaho legislature’s intent in enacting our comparative negligence system. Idaho Code § 6-801, as it read prior to 1987, was substantially similar to M.C.A. § 27-1-702. Additionally, Idaho has a provision identical to M.C.A. § 1-2-105, mandating that “unless otherwise defined for purposes of a specific statute ... a singular number includes the plural and the plural the singular____” I.C. § 73-114.3 Because our analysis in *844Odenwalt misperceived the “unit rule” as incongruous, because the “unit rule” is, in fact, a less harsh and more just method of applying our comparative negligence laws and furthers the intent behind enacting such a system, and because the “unit rule” more closely fulfills our statutory scheme (prior to July 1987), I would now adopt the “unit rule.”
Accordingly, as defendants’ negligence, taken together, is greater than plaintiff’s, they are jointly and severally liable for the amount of damage they caused. Specifically, Coast is liable for 10% of the total damage award, or $266,237.60, and Coleman is liable for 5% of the total damage award, or $133,118.80.
Ill
ALTERNATIVE POSITION ON AGGREGATION ISSUE
My alternative position would be to approve in concept the trial court’s having aggregated the negligence of the two defendant, but I would reverse and remand for new trial for the reasons which follow.
As a complement to our comparative negligence system, Idaho has adopted Wisconsin’s “individual rule” requiring that, when comparing percentages of negligence, the negligence of plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover. We adopted the “individual rule” in Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), wherein we noted that Idaho had adopted its comparative negligence statute, I.C. § 6-801, from Wisconsin (Wis.Stat. § 895.045) in 1971. “Therefore, in the absence of some other legislation which would clearly suggest a different result, [footnote omitted] we should follow the interpretation which the Wisconsin Supreme Court had placed upon their comparative negligence statute prior to 1971.” Odenwalt, 102 Idaho at 5, 624 P.2d at 388. The majority in Odenwalt in adopting the “individual rule” rejected the “unit rule,” whereby a plaintiff’s right to recover is established if the plaintiff’s negligence is less than the combined negligence of all defendants. In rejecting the “unit rule,”4 we noted that
“[i]t would be incongruous to suggest that where there is one defendant and one plaintiff, and both are found to be equally negligent (50%), the plaintiff recovers nothing; but where there are two defendants and one plaintiff, and all three are found to be equally negligent (3372%), the plaintiff may recover 66%% of his damages from either defendant.” Odenwalt, 102 Idaho at 5, 624 P.2d at 387.
We also noted that such incongruity “frequently achieves a harsh and unjust result.” Odenwalt, 102 Idaho at 5, 64 P.2d at 388. In short, we both adopted the case law of Wisconsin prior to 1971 and adhered to our own concept of fairness. (See also, Leliefeld v. Panorama Contractors, Inc., 111 Idaho 897, 728 P.2d 1306 (1986).)
We must, then, look to pre-1971 Wisconsin law, and the logical extensions therefrom, to ascertain the boundaries of our case law concerning comparison and aggregation of negligence. Reber v. Hanson, 260 Wis. 632, 51 N.W.2d 505 (1972), sets the framework for our analysis. In Beber, the negligence of each parent was attributed to both so as to deny their cause of action against one defendant for harm to their child, relying upon the special relationship between, and special and joint duties of, parents. Dombeck v. Chicago Milwaukee St. Paul and Pacific Railroad Companies, 24 Wis.2d 420, 129 N.W.2d 185 *845(1964) succinctly stated the rule in Wisconsin subsequent to Reber:
“[T]he negligence of one of two joint venturers is imputed to the other in actions against third persons ...” Dombeck, 129 N.W.2d at 194.
It is clear, then, that pre-1971 Wisconsin case law required the imputation or aggregation of negligence in actions against third persons provided there existed a special relationship so as to trigger liability. Therefore, we must determine whether Coast, as a wholly-owned subsidiary of Coleman, and Coleman itself, were engaged in such a special relationship.
PARENT LIABILITY FOR TORTS OF WHOLLY-OWNED SUBSIDIARIES
Liability of a parent for actions of a wholly-owned subsidiary in respect to a third entity can occur regardless of whether the subsidiary’s separate corporateness is recognized. Where corporateness is recognized, agency principles apply upon which parent liability may be premised. Weisser v. Mursam Shoe Corp., 127 F.2d 344, 348, n. 11 (2d Cir.1942).
Where one corporation is under the domination of another, the separate corporate entities or personalities might be recognized, treating the latter as principal and the former as agent, thus making the acts of the latter in effect the acts of the former. Henn and Alexander, Laws of Corporations, Ch. 7 § 148, p. 356 (3d.ed. 1983).
In Idaho, we have not had occasion to disregard the corporate entity of a subsidiary corporation, but have recognized that corporate identity may be disregarded where an individual had such a unity of interest and ownership that separate personalities of the corporation and individual no longer exist and where, if the acts at issue are treated as those of a corporation, an inequitable result would ensue. Chick v. Tomlinson, 96 Idaho 483, 531 P.2d 573 (1975); Surety Life Ins. Co. v. Rose Chapel Mortuary, Inc., 95 Idaho 599, 514 P.2d 594 (1973). Factors which influence whether the corporate veil will be pierced (and a subsidiary deemed an “alter ego” of the parent) include the obvious under-capitalization of the subsidiary; the failure of either the parent or subsidiary to adhere to corporate formalities; and the formation of the subsidiary to perpetrate a fraud. United States v. Jon-T Chemical, Inc., 768 F.2d 686 (5th Cir.1985); Middendorf v. Fuqua Industries, Inc., 623 F.2d 13 (6th Cir.1980).
Regardless of the rubric under which liability is found (i.e. recognition of corporateness or not), the courts have tended to look for factors denoting the existence of “control,” “domination,” or “unity of purpose,” or subsidiary as a “mere instrumentality.” In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), the U.S. Supreme Court held a parent corporation and wholly-owned subsidiary incapable of conspiring with each other for purposes of Section 1 of the Sherman Act due to their “unity of purpose” or “common design.” The court stated:
A parent and its wholly-owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal “agreement,” the subsidiary acts for the benefit of the parent, its sole shareholder. Id. 467 U.S. at 771, 104 S.Ct. at 2741-42.
Although Copperweld dealt with the unique issue of whether a parent and its wholly-owned subsidiary could “conspire” with each other for purposes of the Sherman Act, and although those cases which have cited to Copperweld are almost exclusively cases involving alleged violations of the Sherman Act,5 at least one court has *846applied its principles in a different context. In SI Handling Systems, Inc. v. Heisley, 658 F.Supp. 362 (E.D.Pa.1986), the court held that a wholly-owned subsidiary and its parent were essentially the same entity for purposes of ownership of alleged trade secrets, attributing ownership of technology acquired by the wholly-owned subsidiary to the parent, SI.
Although in Copperweld the court was discussing a different issue, the validity of a parent-subsidiary combination as a basis for liability under the antitrust laws, we consider the description quoted above to be equally applicable to the situation which we here confront____ Thus, we do not find it damaging to plaintiff’s claim of ownership of the alleged trade secrets, nor even particularly surprising, that there are no agreements between [the wholly-owned subsidiary] and its parent, SI, relating to a transfer of technology to SI since they are essentially one and the same entity. 658 F.Supp. at 370.
The trend, then, under both Copperweld and SI Handling Systems, Inc., seems to indicate that courts are becoming more cognizant of the “unity of interest” between a parent and its wholly-owned subsidiary. However, the outcomes of cases necessarily result from the unique fact situations presented, and the focus must, of course, be upon the actual relationship between the parent and subsidiary, tempered by the court’s own concept of justice, as was aptly detailed in NLRB v. Deena Artware, Inc., 361 U.S. 398, 403-04, 80 S.Ct. 441, 443-44, 4 L.Ed.2d 400 (1960).
Yet as Mr. Justice Cardozo said in Berkey v. Third Ave. Railroad Co., 244 N.Y. 84, 95, 155 N.E. 58, 61, 50 A.L.R. 599, “Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice.” This is not a complete catalogue. The several companies may be represented as one. Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities. One company may in fact be operated as a division of another, one may be only a shell, inadequately financed; the affairs of the group may be so intermingled that no distinct corporate lines are maintained. These are some, though by no means all, of the relevant considerations, as the authorities recognize. (Emphasis added).
A court’s own inherent notions of justice remain the hallmark of more recent opinions in this area. In Environmental Protection Dept. v. Ventron Corp., 182 N.J. Super. 210, 440 A.2d 455 (N.J.Sup.1981), the court found a parent, Velsicol, liable for the consequences of pollution caused by its wholly-owned subsidiary, WRCC, where “[e]ven if Velsicol had not, in fact, dominated the affairs of WRCC (and it did), it had the ability through its 100% stock ownership to control those acts of WRCC which might affect the public and the environment.” 440 A.2d at 462. Despite lack of either inadequate capitalization or substantially exclusive business with the parent corporation, Velsicol, the court pierced the corporate veil of WRCC because “the separate corporate form ... unless pierced, might be a shield behind which Velsicol would be immune from liability for operations which it substantially controlled and from which it exclusively profited, resulting in massive mercury pollution to the public detriment and peril.” 440 A.2d at 463. (Emphasis added.)
Recent cases involving the specific relationship between Coast and Coleman have resulted in disparate results. In Ogg v. City of Springfield, 121 Ill.App.3d 25, 76 Ill.Dec. 531, 458 N.E.2d 1331 (Ill.App.1984), Coleman was held liable for an electrocution accident involving a Hobie Cat and a low-hanging power line under strict liability theory. The jury found Coleman, as the parent, liable due to the control it exercised over Coast and the economic benefit it re*847ceived from the manufacture of the Hobie Cat.
A parent company which participates in the manufacture, marketing and distribution of an unsafe product or which derives economic benefit from placing it in the stream of commerce or which is in a position to eliminate the unsafe character of the product is liable for the loss caused by the product____ The jury in the present case heard testimony that in 1976 Coleman acquired all of Coast’s stock and installed one of its own officers as chairman of the board and president of Coast. Coleman then instituted a policy requiring product development committee meetings every month at Coast. The committee was responsible for all design changes and Coast’s existing products, including the Hobie Cat 16. Chief executive officers from Coleman received copies of the committee’s minutes and attended several of the meetings. In addition, the Hobie Cat 16 instruction and assembly manual, issued in 1978, the year of the accident, stated that Hobie Cat was a Coleman Company product. After hearing the above evidence, the jury found Coleman liable for the injuries caused by the accident. Because Coleman exercised some control over the design of the Hobie Cat, was identified in some Hobie Cat literature and received economic benefit from the same of the boat, such facts proved a sufficient basis for the jury’s findings. 76 Ill.Dec. 536, 458 N.E.2d at 1336.
Conversely, in Hassinger v. Tideland Electrical Membership Corp., 622 F.Supp. 146 (D.C.N.C.1985), the court found Coleman not liable for any damage caused by the Hobie Cat sailboat, as the “evidence [did] not show complete domination and control by Coleman at the time the Has-singer Hobie Cat was designed, manufactured and sold. Coleman does not so dominate the finances, policies and practices of Coast Catamaran that Coast has no separate mind, will or existence of its own.” 622 F.Supp. at 151. The Hassinger court noted that North Carolina law required that Coleman would only be held liable provided Coast’s corporate entity was a “mere shell, device or puppet of the shareholder or shareholders.” 622 F.Supp. at 150.
In view of these holdings, there appears to be no infallible measuring stick from which parent liability for torts of their wholly-owned subsidiary can be determined —even in the specific Coleman/Coast context, although in the instant case the Illinois tests appear to be more appropriate than the unduly restrictive North Carolina tests. Accordingly, I would accord a jury verdict on the issue of whether Coleman exercised such control over Coast as was necessary to activate agency concepts the substantial deference we normally accord any jury verdict. That is, all reasonable inferences would be drawn in favor of the verdict and the verdict would not be disturbed unless the evidence and inferences are so clear that reasonable minds could not differ on them. Quincy v. Joint School Dist. No. 41, Benewah County, 102 Idaho 764, 640 P.2d 304 (1981); Goodwin v. Wulfenstein, 107 Idaho 492, 690 P.2d 947 (Ct.App.1984).
Here, however, we are presented with a jury verdict which gives us no firm indication of which view was taken on the agency issue. Instead, there are two possible interpretations of the answers to the jury instructions regarding the relationship between Coast and Coleman. One view points first to Instruction No. 13, which reads as follows:
Do you find that Coast Catamaran Corporation and Coleman Company, Inc., under these instructions, are equally at fault by reason of their business relationship which was a proximate cause of the injuries to Michael Ross?
The jury unanimously answered no. Question No. 14 then listed various entities (i.e. Ross, Idaho Power Company, unknown party, Coast and Coleman), with the jury to designate contribution to the cause of the accident by each:
Question No. 14: We find the parties contributed to the cause of the accident in the following percentages:
a. Michael Eoss 10%
b. Idaho Power Company 75%
*848c. Unknown or Unnamed party 0%
d. By reason of a “yes” answer to
Question No. 13: Coast Catamaran Company, and Coleman Company, Inc. 0%
e. By reason of a “no” answer to Question No. 13:
(1) Coast Catamaran Company 10%
(2) Coleman Company, Inc. 5%
TOTAL 100%
“In answering Question No. 14, use subparagraph “d” if you answered “yes” to Question No. 13; but use sub-paragraph “e” if you answered “no” to Question No. 13. (Emphasis supplied.) “In answering Question No. 14, the percentages of causation you find attributable to each party, whether you use sub-paragraphs a, b, c and d; or you use subparagraphs a, b, c and e; must total 100% for all parties.”
One can interpret Instructions 13 and 14, when read together, as denoting a lack of relationship between Coast and Coleman— agency or otherwise — upon which liability might be imputed to Coleman, since the jury answered no to Instruction 13 and, thereby, responded to subsection “e” of Instruction 14. The words “by their business relationship” appear in Instruction 13, and, by their “no” answer, the jury’s response could be interpreted to mean that there did not exist a business relationship between Coast and Coleman such as would lead to imputed liability. Further, in Instruction No. 34, the Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978) Instruction, the jury was informed that:
“... If you find the plaintiff’s negligence equal to or more than the total amount of negligence of either defendant or Idaho Power Company, he will receive nothing from that entity, regardless of the amount of damages you may find that he was sustained. To the extent that you find the plaintiff negligent in an amount less than any of these entities the total amount of damages sustained by him will be reduced by the amount of percentage of negligence you may attribute to him....”
To the extent that the jury’s answers can be interpreted as denoting a finding that Coleman and Coast were distinct entities for purposes of imputing liability, the jury’s assessment of 10% negligence to plaintiff Ross, 10% to defendant Coast and 5% to defendant Coleman would indicate an intent on the part of the jury that Ross receive nothing from either Coast or Coleman.
Another equally plausible interpretation of the jury answers determines that the jury did in fact make a finding that Coast and Coleman engaged in a “composite business enterprise,” which may, or may not, be the kind of interrelationship upon which liability could be imputed. Under this interpretation, the jury finding to Instruction No. 13 is reád to be entirely understandable, since the jury had, in fact, found Coast and Coleman “unequally” negligent. Coast Catamaran was found 10% negligent, while Coleman was found 5% negligent. Ten percent and five percent are not “equal” amounts of negligence and, therefore, the jury finding to Question No. 13 was mandated by the jury’s own assessments of negligence. This view also notes that an unequal allocation of negligence as between Coast and Coleman is not inconsistent with a finding that the two were involved in a composite business enterprise of the kind which might lead to imputed liability. One participant in a business venture may be more culpable than another.
The view that the jury did, in fact, decide the imputed liability issue also gains credence when Instruction No. 26 is viewed:
You may find Coleman Company liable for a defect in the design of the Hobie 16 sailboat, provided that you find all of the elements of product defe'ct liability or negligence as required by these instructions previously given, were proved by plaintiff, and if you find that Coleman Company for a profit or other benefit participated in a composite business enterprise with Coast Catamaran Corporation whereby a consumer demand for a product and reliance upon the product was created by Coleman Company which placed a defective product in the stream of commerce. (Emphasis added.)
It can be presumed that, when the jury returned a finding that Coleman was, in *849fact, 5% negligent, they did so with knowledge that such a finding could not be made unless they had already found Coleman Company engaged in a “composite business enterprise” with Coast Catamaran Corporation, as specified in Instruction No. 26. In short, this view maintains that it was a necessary prerequisite to a finding of any fault on the part of Coleman Corporation that the jury find the existence of a “composite business relationship” as between Coast and Coleman.
As both of the views discussed above are equally plausible, we are left in a position where we simply cannot discern a definitive finding of the jury regarding the relationship between Coast and Coleman and I conclude that this is due to a failure to propound to the jury instructions designed to elicit a clear finding in this regard. While it is the duty of the party asserting the issues (here, plaintiff Ross) to give notice by requesting appropriate jury instructions, I.R.C.P. 51(a)(1); Joyce Brothers v. Stanfield, 33 Idaho 68, 189 P. 1104 (1920), I find that here the deficiencies in the instructions are not due to plaintiffs failure to request adequate instructions, but that counsel for defendants was at least equally the cause of the deficient instructions. In fact, it was defense counsel who argued that the issue of imputation of negligence not be included on the special verdict form (plaintiffs having argued for inclusion), stating:
Well, I’m not going to suggest an instruction [on imputation of negligence] that, in effect, gives away the store and admits an imputation of negligence____ One thing you can obviously do is to leave it the way we’ve got it, and then, after we get the percentages, get down stream, and then come in and argue what should be done with them.
[Plaintiff’s counsel]: Oh, come on we can’t argue the jury’s verdict after they’ve given their verdict ... We’d have to know clearly what the jury wanted to do ...
[Defense counsel]: ... Accumulating is something the judges do all the time. They take and add one percentage to another percentage, if they see fit, and refuse to, if they don’t see fit, and you don’t ask the poor damn jury to be involved in the process. Accumulating is something that goes on all the time.
In view of the deficiencies and confusion in the jury instructions, I would rule that the case must be remanded for new trial on the issue of liability.
For guidance on retrial, I would agree with counsel for Coleman that the decision, whether to aggregate is for the trial court to make as a matter of law, based upon the evidence of the presence or absence of a composite business enterprise.
Should the trial court desire to submit the issue of the business relationship to the jury for an advisory finding, the issue should be framed more cogently than was done here.
IV
THE SANCTIONS
As already mentioned, the trial court granted Ross’ motion in limine and entered an order that there be no mention of the settlement between Ross and Idaho Power. The order provided that, should the defense be put in a position where a legitimate mention of the settlement agreement was called for, the defense would have to make an offer of proof, off the record, before the word “settlement” could be mentioned. In view of the lengthy quotations from defense counsel’s closing argument which I have already detailed in opening this opinion, I need not look any further to find supporting evidence that the trial court judge did not abuse his discretion by granting sanctions for obvious, egregious and repeated violations of its order on the motion in limine. Defense counsel’s remarks, particularly those implying that Idaho Power had “admitted” causation, put counsel for Rossin the untenable position of either ignoring defense counsel’s violative remarks or calling them to the attention of the jury one more time, thereby further reinforcing any harmful effect the remarks might have. See, Rojas v. Lindsey Manufacturing Co., 108 Idaho 590, 701 P.2d 210 *850(1985). Here, counsel for Ross appropriately chose to file a motion for mistrial or, alternatively, for sanctions in the way of attorney fees. I would hold that, had the trial court based its award of attorney fees (which were made pursuant to I.C. § 7-601(5)), solely upon the violation of the motion in limine by defense counsel, the trial court would not have abused its discretion.
However, the trial court obfuscated the issue by also finding that “the defendants made no offers of settlement before, during or after trial, except for the $10,000 offer of judgment and that failure of these defendants to reasonably and in good faith discuss or negotiate settlement constitutes additional grounds for the award of attorney fees and costs.” In view of the jury finding that Coast was only 10% negligent, and Coleman only 5% negligent, it cannot reasonably be argued that the defendants did not, at least, have a strong and valid defense upon which they were entitled to justifiably rely. I cannot support an award of sanctions partially premised upon an alleged failure to negotiate and settle in good faith where the facts and ultimate jury findings make it apparent that the defense could reasonably have believed that their case could have been won. The position taken by the defendants in this regard cannot be characterized as frivolous or unreasonable.
One can employ no reasonable method to attempt to ascertain which portion of the $100,000 attorney fee award was appropriately granted for the violation of the order in limine, and which portion was inappropriately granted due to defense counsel’s alleged failure to settle in good faith. Such is not the function of an appellate court. Ordinarily, then, we would remand to the original trial court for such apportionment and redetermination of the amount of sanctions. As the trial court judge has since retired, this is not possible. However, I still deem it more appropriate for a trial court judge to render the initial determination as to a sanction amount and, accordingly, I additionally would remand for such purpose. I also note that I.R.C.P. 37(e) may provide the more appropriate authority under which sanctions may be imposed:
Rule 37(e). General sanctions — failure to comply with any order. — In addition to the sanctions above under this rule for violation of discovery procedures, any court may in its discretion impose sanctions or conditions, or assess attorneys fees, costs or expenses against a party or his attorney for failure to obey an order of the court made pursuant to these rules. (Emphasis added).
V
Finally, a comment upon the majority opinion’s analysis. Part II of the majority’s opinion is captioned: “The district court’s overruling of the jury’s verdict.” That caption demonstrates the fallacious circular reasoning of the opinion. The issue on appeal is whether the verdict was for the plaintiff or the defendant. The majority assumes at the outset it was a defense verdict and then takes nineteen pages to explain why the court could not overturn it. It is a gross mischaracterization to assert, as the majority does at page 826, 761 P.2d at page 1178, that the trial court “overruled the jury’s verdict.” Sometimes circular reasoning is necessary to reach a result?
. I realize that such a holding will only have short-term effect, absent legislative action, as the 1987 session of the Idaho Legislature amended I.C. § 6-803 to specifically require comparison on an individual basis in negligence cases tried after the effective date of that new statute, July 1987. I.C. § 6-803(3) now reads:
(3) The common law doctrine of joint and several liability is hereby limited to causes of action listed in subsections (5), (6) and (7) of this section. In any action in which the trier of fact attributes the percentage of negligence or comparative responsibility to persons listed on a special verdict, the court shall enter a separate judgment against each party whose negligence or comparative responsibility exceeds the negligence or comparative responsibility attributed to the person recovering. The negligence or comparative responsibility of each such party is to be compared individually to the negligence or comparative responsibility of the person recovering. Judgment against each such party shall be entered in an amount equal to each party’s proportionate share of the total damages awarded.
The instant case, as well as all others tried prior to July 1987, is not affected by this "tort reform” legislation.
. The majority in Odenwalt paid lip-service to this mode of statutory interpretation by merely acknowledging the existence of I.C. § 73-114 in its footnote 5, but stating that it was not a rule *844of general application and applied only when necessary to carry out the obvious intent of the legislature.
. It should be noted that the "individual rule” now appears to run counter to the weight of both case authority and scholarly opinion in favor of the "unit rule,” with aggregation of defendants’ negligence occurring regardless of special relationship between the defendants. See, North v. Bunday, 735 P.2d 270 (Mont.1987); Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (Pa. 1986); Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo.1983); Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 642 P.2d 930 (1982). See also, 4 F. Harper, F. James & O. Gray, § 22.16, p: 404 (2d ed. 1986).
. See, International Distribution Centers, Inc. v. Walsh Trucking, 812 F.2d § 786 (2d Cir.1987); Reiter's Beer Dist., Inc. v. Schmidt Brewing Co., 657 F.Supp. 136 (E.D.N.Y.1987); H.R.M., Inc. v. Tele-Communications, Inc., 653 F.Supp. 645 *846(D.Colo.1987); Gucci v. Gucci Shops, Inc., 651 F.Supp. 194 (S.D.N.Y.1986).