concurring.
The majority is of the opinion that House Bill 551 enacted by the General Assembly, after the accident at issue here, is not controlling in this case. I agree that House Bill 551 does not have retroactive effect, but I think that it is not inappropriate to point out that in the future House Bill 551 will compel the result we reach in this case. The statute requires the jury to determine the percentage of the total fault of all the parties to each claim that is *433allocated to each claimant, defendant, third ;■party-defendant, and person who has been released from liability.
Justice Leibson, in his dissent, expresses concern that the majority opinion represents a major departure from established precedent and will have an unsettling effect upon tort law. The greatest departure from established principles of tort law in this century was the opinion in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), authored by Justice Leibson. That opinion completely overturned an established precedent which had existed for more than 100 years. It represented an earthquake of unsettlement of established principles of tort law of a magnitude of 10 on the Richter scale, and as in the case of most earthquakes, it will be followed inevitably by a series of aftershocks.
The majority opinion does not overrule or depart from any established precedent, but it is an extension of the rule established by Orr v. Coleman, Ky., 455 S.W.2d 59 (1970). It is not a departure from, nor does it overrule, precedent because we have never previously held that apportionment could not be made against a nonparty. Such apportionment would not be permitted today, in my view, except for the guiding principle of Hilen v. Hays, supra, that liability should be apportioned according to fault and that the extent of liability should be related to the extent of fault.
In this trial, the jury was precluded from assessing the comparative extent of the fault of the two alleged tortfeasors, and the end result was that one of them was subjected to a portion of the liability without any determination that it represented his share of the fault. The result reached by the majority merely sends the matter back for a jury determination of the percentage of fault attributable to the appellant, and the judgment against him will then fairly correspond to the extent of his fault.
The result reached by the majority today is simply a ripple upon the pond of tort law which has spread outward from the splash made by Hilen v. Hays, supra.