dissenting.
Respectfully, I dissent.
The facts are that Floyd, the injured plaintiff, accepted a “nominal ” settlement ($2-3,000) in a case involving serious injury, when offered by the insurance carrier for his host driver, Whittamore, whom he never sued, and quite apparently, never intended to sue, and thereafter filed this suit against Wood and Carlisle Construction Company.
On two occasions at oral argument counsel for the respondents, Steven J. Wood and Carlisle Construction Company, Inc., acknowledged that the settlement was “nominal”: once stating “We also discovered that Mr. Whittamore had previously settled with the plaintiff for a nominal amount”; and later stating “We should not, of course, be bound by that nominal settlement.”
Indeed, they should be bound so far as any right to an apportionment instruction is concerned, because this settlement in no way impaired their right to contribution or indemnity against Whittamore, and because they deliberately chose not to name Whittamore in a third-party complaint. When asked at oral argument about this failure to seek redress against Whittamore, counsel for Wood and Carlisle Construction stated, “Why would any defense attorney bring someone into a case who obviously would be antagonistic to them if they did not have to?”
It surpasses understanding that against this factual background our Court has *434elected to rewrite the common law, extending the principle in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) beyond its clearly defined limitation. Orr was based upon analogy to KRS 454.040, which permits a “jury” in a case on trial to “assess joint or several damages against the defendants.” We held that if the plaintiff settled before trial with one of the defendants named in the law suit, the remaining defendant was entitled to an apportionment instruction. We were construing a statute clear in its direction, limited to named “defendants.” In subsequent cases we have applied Orr v. Coleman in a variety of situations, but never have we permitted apportionment against an unnamed party. On the contrary, in every case applying Orr v. Coleman, it was the plaintiff’s decision to sue a party that triggered the defendant’s right to an apportionment instruction against such party; apportionment was permitted because the party had been a defendant before the court at some point in the litigation.
In Corbin Motor Lodge v. Combs, Ky., 740 S.W.2d 944 (1987), a decision written so recently that the ink is hardly dry, by the same author as the present Opinion, we stated “the law in this area,” common law tort doctrine, should not be changed unless it “reaches an absurd result” or because “change in the present law is compelled in order to avoid grave injustices.” 740 S.W. 2d at 946. We announced as our policy:
“Unless the need to change the law is compelling, the majority of this court is of the opinion that stability in the law is of sufficient importance to require that we not overturn established precedent which itself is based upon a reasonable premise.” Id.
If this is our policy, it should be uniformly applied. The present case is a critical departure from established precedent with roots in the common law well over a hundred years old. Yet we deny this claimant the benefit of the law because he took a “nominal” settlement from his host driver before filing suit in a serious injury case. Until now the law was that the named defendant in a law suit of this nature was not entitled to apportionment against some other person whom the plaintiff had never sued; instead, the defendant would be entitled to a credit against the judgment for the amount paid on behalf of a potentially liable person unnamed as a party in the litigation, and would retain the right to indemnity or statutory contribution against such other unsued person. Orr v. Coleman, supra, did not supplant Restatement (Second) Torts § 885(3), which provides that a payment by “any person” made in compensation for a claim for a harm for which others are liable is a credit against the judgment. All this is well set out in Burke Enterprises, Inc. v. Mitchell, Ky., 700 S.W.2d 789, 794-96 (1985).
To an impartial reader of our opinions, it must appear intolerably unjust that the present plaintiff was denied the benefit of established law which he relied on in taking a “nominal” settlement from his host driver before filing suit against the parties he deemed responsible. He must now endure a new trial to decide apportionment between the named defendant and an unnamed party. The cost for him must necessarily far exceed the “$2-3,000” he accepted. It is a no win situation.
In seeking to demonstrate his reliance upon established law, appellant’s Brief cites a law review article explaining this subject, Germain, Remedies: Contribution and Apportionment Among “Joint Tort-feasors”, 65 Ky.L.J. 285 (1976-77), which explains that it is not settlement with an unnamed party that triggers the application of the apportionment principle in KRS 454.040, but the plaintiff’s decision to sue designated parties which triggers the right to that instruction:
“By its terms, KRS 454.040 appears to apply only to a situation in which P has sued both X and Y [co-tortfeasors]. Obviously, the jury could not assess ‘joint damages against the Defendants’ if P had sued only X and not Y.” Germain, supra, at 295.
In D.D. Williamson and Co. v. Allied Chemical, Ky., 569 S.W.2d 672, 674 n. 3 (1978), we described this article as “a very thorough and helpful discussion and evalu*435ation of Kentucky law on the subject.” We have turned it into a disaster for the present plaintiff who relied on it.
In a case where the equities are all on the side of the plaintiff, we have chosen to reverse this longstanding principle. This case does not involve assessing comparative negligence among named parties, but permitting the defendant to evade liability by throwing blame on an unnamed person.
Our Opinion in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), so hyperbolically indicted in Justice Vance’s “Concurring Opinion,” is not a legitimate explanation for the present legal aberration. Justice Vance states:
“Such apportionment would not be permitted today, in my view, except for the guiding principle of Hilen v. Hays, ...”
The comparative negligence principle in Hilen v. Hays does not excuse, must less suggest, today’s unjust result. The proper extrapolation of the comparative negligence principle to present circumstances is articulated in the Uniform Comparative Fault Act, 12 U.L.A., Civ.Proc. and Rem.Law (Cum.Supp.1984), adopted in part in Hilen v. Hays. The Act provides for apportionment among defendants and named third party defendants. In the event that any such named party is noncol-lectible, the percentage of liability apportioned to such party shall then be born by the remaining parties to the lawsuit (plaintiff, defendants and third party defendants) on the basis of their comparative fault. There is nothing about the comparative fault principle, fairly applied, calling for the abuse inflicted upon the present plaintiff/appellant.
In the present case the appellant claims that there was, in any event, no evidence of any negligence on the part of his host driver to submit to a jury, and the record seems to bear this out. The defendants/appellees’ responded that liability was “hotly disputed,” but point to nothing specific that would establish that the unnamed host driver acted negligently. The appel-lees’ position is that “because the exact nature of the collision is not important to the issue on appeal, a detailed description of the collision is not necessary. (Emphasis added.) On the contrary, we should view it essential that the defendants/appel-lees first establish there was evidence justifying a finding of fault against the unnamed host driver before we even consider whether to set aside the trial court’s judgment and order a new trial on this issue.
Nix v. Jordan, Ky., 532 S.W.2d 762 (1975) defined the previous limitation on the application of the Orr v. Coleman principle. Plaintiff, who was a passenger in her husband’s vehicle, elected to sue only the driver of the vehicle with which her husband collided. Defendant filed a third-party complaint naming plaintiff’s husband. Our Court held that the apportionment principle stated in Orr v. Coleman did not apply in these circumstances, explaining that “the authority for Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) derives from a statute (KRS 454.040) which cannot fairly be construed that liberally. Literally, the statute permits apportionment only against ‘defendants,’ which necessarily means joint defendants.” 532 S.W.2d at 763. Emphasis added.
The present case not only offends the law as announced in Nix v. Jordan, but goes a critical step beyond that case because, unlike Nix v. Jordan, here the present defendants were not even named in a third-party complaint.
The present opinion is extraordinary. It discusses overruling Nix v. Jordan in a footnote, volunteering that “a majority of this court ... would overrule Nix v. Jordan, ” when the fact situation is different here, and when we have not been asked to consider overruling Nix v. Jordan in this case. On the contrary, defense counsel stated at oral argument:
“I do not want to have you overrule Nix v. Jordan. I think Nix v. Jordan is good law.”
What the defendants/respondents do seek in our Court, in no uncertain terms, is to reverse the trial court which followed established law, and to affirm the Court of Appeals which erroneously cited precedent; to hold that the apportionment principle in KRS 454.040 applies where the plaintiff *436has accepted a nominal settlement before filing suit from some other person who is not a named defendant or even a third-party defendant.
Justice Vance, the author of the Majority Opinion, has also filed a Concurring Opinion in which he undertakes a discussion of the meaning and effect of H.B. 551, a statute we have yet to consider. It may be within the authority of the General Assembly to effect a statutory change in this aspect of the common law. If so, such a change may bind future plaintiffs in future cases. But it seriously intrudes upon both stare decisis and simple justice to impose this result on this plaintiff in this case.
This is not the case to make new law. This is true especially if there are statutory changes to be considered just over the horizon. The situation calls for nothing more than an unpublished opinion following established law, reversing the Court of Appeals and affirming the judgment in the trial court.
LAMBERT, J., joins in this dissent.