dissenting.
I concur in the dissent of Justice Stephenson on the issue of the right to contribution. Furthermore, I do not agree that we should in this case gratuitously pass upon the question of the applicability or nonapplicability of the rules announced in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) and Nix v. Jordan, Ky., 532 S.W.2d 762 (1975). These questions were not raised before nor decided by the trial court and are not before us for review. Our determination, therefore, is simply a ruling that is not necessary to the decision.
Like much gratuitous advice, it is given without fully discussing the reasons for and against it. An argument was advanced herein that Burrell should be treated as a settling tort-feasor in that his liability to the employee for negligence was discharged by reason of the provisions of the Workers’ Compensation Act. In other words, the employee effectively settled any claim he may have had for negligence against his employer by his acceptance of workers’ compensation benefits.
Our opinion holds, however, that the employer may be held to answer for his negligence in a claim for contribution filed by a third party against whom the employee had made claim. This claim for contribution immediately places in issue the question of whether the employer was negligent in causing the injury and the extent of his liability to the third party, if any. Our holding in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), was predicated upon the theory that in a system where liability is based upon fault, the extent of liability should be determined by the degree of fault.
It would seem to logically follow, therefore, that if the injury to the employee was caused by concurring negligence of both Burrell and the Electric Plant Board, that the employee has settled his claim against Burrell by his acceptance of the Workers’ Compensation Act and that his claim against Electric Plant Board of the City of Franklin is limited to compensation for that portion of his injury caused by the negligence of Electric Plant Board in a trial under the principle approved in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970).
The employee is not a party to this appeal and was therefore not afforded an opportunity to be heard. The applicability of Orr v. Coleman, supra, was not presented to the trial court, and we should not determine the issue until it has been squarely presented for review, and when the issues have been fully briefed before us by all the parties affected by the decision.