dissenting: K.S.A. 60-258a(c) provides:
“On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.”
I would treat the “joined additional party” as a party to the action for all purposes if formally joined by service of process. To permit the plaintiff to make the determination of liability by a restricted choice of defendants clearly violates the legislative intent of the comparative negligence statute. In Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978), we concluded:
“[T]he intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.”
To facilitate the procedure, a distinction was made between formal joinder and joinder of those who could not be served with summons. This distinction indicates formal joinder with service of process can impose liability independent of a formal assertion of a claim. Not only did we recognize this concept in Brown but the theory served as a basis for comparative implied indemnity recognized in Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788 (1980):
*193“Of course to satisfy the legislative intent of encouraging resolution of all issues in a single action, the comparison of fault of all wrongdoers should be effected in the original action. Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978). It must be recognized that the procedural mechanism of K.S.A. 60-258a(c) exists to facilitate joinder (and hence comparison) of all potential wrongdoers and may supersede the third-party mechanism which formerly provided the only means for securing a consideration of the fault of a wrongdoer who plaintiff chose not to sue. The maintenance of a claim by plaintiff against a joined party is not a prerequisite to securing comparison. Brown v. Keill, 224 Kan. 195, Syl. ¶ 6. It would appear, however, that the formal ‘joinder’ mechanism of K.S.A. 60-258a(c) evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. This court has not, however, viewed the invocation of formal joinder as a necessary prerequisite to effecting comparison of fault (Brown v. Keill, 224 Kan. at 205-207), and this court has recognized that the comparative negligence statute is silent as to what position the added party occupies once that party is joined.
“We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When as here a settlement for plaintiffs’ entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.”
In the instant case appellees were formally joined and should be considered parties to this action for all purposes. All the procedural prerequisites have been met such as service of process and pleadings. The statute of limitations should not be in issue herein. As we stated in Kennedy at page 461:
“Settlements between injured parties and tortfeasors are favored in the law, and the policy of settlement should be encouraged by providing that a release by an injured party of one tortfeasor does not release other tortfeasors from claims of indemnity. If the release agreement expressly releases all tortfeasors, the settling tortfeasor should be able to seek apportionment from his co-tortfeasors based on comparative degrees of responsibility.”
Appellants have meticulously complied with the procedure we delineated in Kennedy and should be permitted to have comparative fault of all parties determined and be indemnified if the jury so determines.
I would reverse the trial court.
Fromme and Holmes, JJ., join the foregoing dissenting opinion.