concurring in result.
In my view, Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), and Section 537.060 mandate the conclusion reached by the principal opinion — a result which I believe both fails the test of fairness and encourages only partial settlement of lawsuits — a result unjustified by the principal opinion’s reliance on the intent of the jury. I therefore concur in result only.
In Gustafson, this Court adopted “insofar as possible” the Uniform Comparative Fault Act (U.C.F.A.), establishing a system of pure comparative fault for tort actions in Missouri. The meaning of the phrase “insofar as possible” has been the subject of great debate, and, as was revealed clearly in Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986), held a different meaning even for those judges who formed the Gustafson majority. Despite disagreement as to the meaning of “insofar as possible,” Gustafson clearly states that a conflict between the U.C.F.A. and Section 537.060 must be resolved in favor of the legislatively enacted statute.1
Under Section 2 of the U.C.F.A., the court is to instruct the jury to make findings indicating “the percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under Section 6.” Thus, under the U.C.F.A., the settling defendant’s fault is considered and assessed a percentage value by the jury. The plaintiff’s claim against the remaining defendants is then reduced by the amount representing the settling defendant’s percentage of fault, i.e., his “equitable share.”
In contrast, Section 537.060 provides no means by which to determine a settling defendant’s equitable share. Rather, the plaintiff’s claim is reduced by the actual .settlement amount. The settling defendant’s equitable share is therefore of no relevance; he is dismissed from the action for all purposes, including allocation of fault.
Section 537.060 provides that a settlement agreement “shall reduce the claim by the stipulated amount of the agreement or in the amount of consideration paid, whichever is greater.” Insofar as the statute does not specifically restrict the term “claim” to mean the amount attributable to the negligence of others, it would appear that a literal construction of Section 537.-060 mandates the conclusion reached by the principal opinion: the settlement amount must be deducted from plaintiff’s total damage award before adjustment for percentages of fault.
Were not this conclusion mandated by Gustafson and Section 537.060, however, I would endorse the formula selected by the Eastern District Court of Appeals in Schiles v. Schaefer, 710 S.W.2d 254 (Mo.App.1986). Under the Schiles method, the amount of settlement is deducted after the total damage award is adjusted for the plaintiff’s fault. In this way, the plaintiff’s “claim” is, in my view appropriately, considered to be the amount attributable to the negligence of others.
Without relying on Section 537.060, the principal opinion finds — -perhaps as a matter of common law — the settling defendant’s absence from the determination of fault to be of dispositive importance. I cannot agree.
The Schiles method distributes financial responsibility according to the percentage of fault assigned by the jury. In contrast, the formula adopted by the principal opinion takes into account the absence of the settling defendant, in effect redistributing percentages of fault to reflect the assess*380ment of relative blame as between the plaintiff and remaining defendants) as a constant.2 This calculation assumes that the jury assesses percentages of fault in relation to the parties.
In my view this assumption is incorrect. The jury’s award of damages represents the total extent of injury suffered by the plaintiff. A pure system of comparative fault reduces the amount of damages to the extent of the plaintiffs own responsibility in producing his injury. See Schwartz, Comparative Negligence, sec. 12.7 at 206-207 (1974 and Supp.1981); Garrison, Missouri Comparative Fault Treatise: Theory and Practice, UMKC C.L.E., sec. 2.1 at 3 (1986). Therefore, the plaintiffs “claim” should represent that portion of the total injury attributable to others. While the plaintiffs individual responsibility for his injury may be viewed as proportionate to the competing blameworthiness of others,3 the logical axis around which percentages of fault revolve is injury.
Allocation of actual fault among all those who contributed to the plaintiffs injury is more likely the exception than the rule under our current practice, regardless of the mechanics used to determine recovery. Whether a potential tort-feasor is absent from the distribution of fault because service cannot be obtained, because he has settled with the plaintiff, or for any number of other reasons, his contribution to the totality of injury-producing negligence is unknown to the jury. Attaching consequence to the absence of a potential tort-feasor whose fault is unknown to the jury is an exercise in futility;4 a jury cannot consider what it does not have before it.
The principal opinion bases its conclusion in part upon the desirability of encouraging settlements. The formula adopted, however, does not further that appropriate policy. Instead, it and Section 537.060 serve only to encourage partial settlements since the plaintiff stands to reap a windfall if he settles with one/some but not all of the defendants.
In my view, the Schiles formula is more consistent with a system of pure comparative fault than the formula followed by the principal opinion or that adopted by Section 537.060. I am constrained to concur in result only in deference to the language of Section 537.060.
. The conflict between Section 537.060 and Section 6, U.C.F.A. was specifically recognized in Gustafson, 661 S.W.2d at 15-16 n. 10, wherein this Court conceded that insofar as Section 6 is inconsistent with Section 537.060, the statute must control.
. The principal opinion underscores what it perceives to be the critical distinction between jurisdictions which do and do not assign percentages of fault to settling defendants with an example taken from a "recent opinion of the Michigan Supreme Court." The hypothetical assumes that the jury’s assessment of fault is made relative to the parties and that the percentage relationship of blame between them is constant.
. U.C.F.A. sec. 2 comment.
. In some cases, as where a party settles during the course of trial, the jury is aware that there are more persons to whom fault may be attached than those ultimately considered. Whether, or to what extent, the jury will "reallocate” percentages of fault to account for the absent settlor is speculative at best. In any event, the distribution of fault among those left at trial is still made in reference to total injury and not "total negligence."