dissenting.
I respectfully dissent. In my view, Gustafson v. Benda, 661 S.W.2d 11, 15-16, n. 10 (Mo. banc 1983), directs a conclusion opposite that reached by the principal opinion regarding § 537.060, RSMo 1978. This is suggested in the opinion of Robertson, J. concurring in result and in Schiles v. Schaefer, 710 S,W.2d 254, 275-77 (Mo.App.1986).
The court of appeals opinion suggests that we have two alternatives: (1) first deduct the settlement figure from damages as found in a trial between plaintiff and defendant and then apportion plaintiff’s and defendant's liability on the basis of fault found in the trial between the two parties, or (2) reduce plaintiff’s damages as found in a trial between plaintiff and defendant by plaintiffs percentage of fault as there found, less the settlement. I respectfully suggest that this case cries out for consideration of a third alternative, which now would fully embrace section 6 of the Uniform Comparative Fault Act (U.C.F. A.). Since the third alternative could not be made applicable to this case, it is necessary to make an interim choice between the *381alternatives discussed by the court of appeals.
The amount the parties arrived at through settlement negotiations constitutes an estimate, however rough, of the released party’s “equitable share” of responsibility for the injury. The essence of settlement is an estimation by the settling parties of what a jury might conclude based on evidence in a trial involving all of the parties. A plaintiff is willing to accept “X” dollars now, knowing that a judgment award might be more or less. The settling defendant, of course, entertains a converse proposition. Through arms-length negotiation, it is not incredulous to conclude that a rough estimate of “equitable share” is derived. This is the “equitable share” contemplated by sections 2(a) and 6 of the U.C.F.A. The majority chose to subtract this amount from plaintiffs unadjusted recovery against the remaining defendants. This in fact is a partial application of U.C. F.A., section 6, in a case where the settling defendant’s percentage of fault has not been determined by a jury, and is in fact unknown. The method used by the majority tends to subvert the role of the jury as arbiter of fault apportionment.
Promotion of settlements is both the stated and ideal goal of § 537.060. However, under the statute, the jury is forced to apportion fault among “remaining parties,” based only on the evidence at the subsequent trial. The settling party is not considered in the computation of fault. Hence, the prior settlement with a released tortfeasor has little to do with the “claim against the remaining defendants” from the perspective of the jury. I therefore agree with Robertson, J. that the approach of Schiles v. Schaefer, 710 S.W.2d 254, 277 (Mo.App.1986), is the better way, under current law, by which a claim can be apportioned consistent with the manner which we instruct juries to undertake that determination. As was observed in Schiles, “[t]he settlement should not change the amount of damages plaintiffs can recover, it should only reduce the amount that the non-settling defendants are responsible for.” Id. at 277. 6.
Were these my only choices, I would hold that any settlement amount is to be subtracted from the plaintiff’s total damage award after adjusting plaintiff’s total recovery, as determined by the jury without regard to any intervening settlement, for his own fault. This, in my opinion, better reconciles the legislature’s directions in § 537.060 and comes closer to maintaining the integrity of the Missouri jury panel as the arbiter of comparative fault.
However, neither the result of the principal opinion nor the above result reaches the real issue involved in such cases. Application of either the formula adopted by the majority herein or the “alternative” proposed by the Schiles court results in adjusting upward or downward what the remaining defendants are obligated to pay, regardless of their true percentages of fault. One, in some cases, is more favorable to the plaintiff, and the other, in certain cases, is more favorable to those defendants unwilling to “gamble” on a settlement amount. The application of either rule does not square with our ultimate goal of fairness. In A Theory of Justice, John Rawls states that the basic or “original position” for “justice as fairness” begins with all individuals on an equal basis with each other. J. Rawls, A Theory of Justice 12 (1971).
This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.
Id.
The importance of considering the third alternative is apparent. The only totally fair manner by which fault can be distributed in such circumstances is through application of section 6 of the U.C.F.A. Such application places the “fact of settlement” on a more neutral footing, making it more desirable and more appealing insofar as the merits of the case are concerned. “In my view, a ... [tort system] should strive for *382fairness ‘in assigning rights and duties and in defining the appropriate division of social advantages.’ ” Lippard v. Houdaille Indus., Inc., 715 S.W.2d 491, 500 (Mo. banc 1986) (Donnelly, J., dissenting) (quoting J. Rawls, A Theory of Justice 10 (1921)) (emphasis added).
It should be noted that among other things, § 537.060 made no mention of whether the settling defendant should remain in the action for the sole purpose of having his percentage of liability, his “equitable share” détermined, our only law on that subject being State ex rel. Maryland Heights Contractors, Inc., v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), a case decided after Missouri Pacific R. R. v. Whitehead and Kales, 566 S.W.2d 466 (Mo. banc 1978), but before Gustafson.
The legislature, while having failed to deal directly with § 537.060, has spoken on the subject as it relates to health care provider tort actions. The legislature there adopted the section 6 U.C.F.A. approach in total and almost verbatim:
538.205. Definitions. — As used in sections 538.205 to 538.230, the following terms shall mean:
(2) “Equitable share”, the share of a person or entity in an obligation that is the same percentage of the total obligation as the person’s or entity’s allocated share of the total fault, as found by the trier of fact;
538.230. Apportionment of fault authorized-defendants jointly and severally liable, when — release of one defendant, effect — 1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services where fault is apportioned among the parties and persons released pursuant to subsection 3 of this section, the court, unless otherwise agreed by all the parties, shall instruct the jury to apportion fault among such persons and parties, or the court, if there is no jury, shall make findings, indicating the percentage of total fault of all the parties to each claim that is allocated to each party and person who has been released from liability under subsection 3 of this section.
3. Any release, covenant not to sue, or similar agreement entered into by a claimant and a person or entity against which a claim is asserted arising out of the alleged transaction which is the basis for plaintiff’s cause of action, whether actually made a party to the action or not, discharges that person or entity from all liability for contribution or indemnity but it does not discharge other persons or entities liable upon such claim unless it so provides. However, the claim of the releasing person against other persons or entities is reduced by the amount of the released persons’ or entities’ equitable share of the total obligation imposed by the court pursuant to a full apportionment of fault under this section as though there had been no release.
Sections 538.205(2), 538.230.1 and 3 RSMo 1986 (effective Feb. 3, 1986). There can be no justification for treating lawyers and businessmen any differently than or less favorably than physicians and health care providers. All should be treated equally. We do not have a different statute of limitations for health care actions. Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. banc 1986). There is no reason to have a different rule regarding the handling and crediting of settlements.
I believe that the legislature’s handling of tort reform, H.R. 700, §§ 36, 41, 84th Gen. Assembly, 1st Sess. (1987), signals their general approval of the comparative fault concept. In section 36 of H.B. 700, the legislature directed trial of product liability cases under comparative fault. House Bill 700 adopts almost verbatim section 2(d) of the U.C.F.A. approach as it relates to reallocation of uncollectible judgments:
2. In all tort actions for damages in which fault is assessed to plaintiff the defendants shall be jointly and severally liable for the amount of the judgment *383rendered against such defendants except as follows:
(1) In all such actions in which the trier of fact assesses a percentage of fault to the plaintiff, any party, including the plaintiff, may within thirty days of the date the verdict is rendered move for reallocation of any uncollectible amounts;
(2) If such a motion is filed the court shall determine whether all or part of a party’s equitable share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault;
(3) The party whose uncollectible amount is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment;
1987 Mo.Legis.Serv. No. 1 (Vernon) (to be renumbered § 537.067, RSMo 1987).
The two described instances where the legislature adopted the U.C.F.A. approach together with the legislature directing trial of product liability cases under comparative fault suggests that we should fill the gap left open in § 537.060, where the legislature failed to state whether the settling parties should remain in the action for the purpose of determining their percentage of fault — their equitable share. All of the contradictions and confusion now existing by reason of the legislative changes can be removed by our simply stating and directing that from and after January 1, 1988, in all cases where one or more of the multiple defendants has settled with plaintiff either prior to or during trial, such settling defendant shall remain as or may be made a party to the action for the sole purpose of having the jury determine the party’s percentage of fault. By so doing, all settlements thereafter would be handled and credited in accordance with section 6 of the U.C.F.A. We should state that in cases tried prior to January 1, 1988, the court may by agreement of the parties utilize this procedure. I recognize, of course, that the provisions of §§ 538.230 and 537.067 and the holding of this opinion should not apply to a cause of action resulting from negligent parking of a truck on February 24, 1980. In view of the fact that the procedure utilized by the principal opinion is a partial application of section 6, U.C. F.A. procedure, I would rule this and other cases tried before January 1, 1988 in accordance with the procedure outlined in the principal opinion.
By so doing, this Court would take a major step in the direction of total fairness in the tort system, the ultimate goal of all tort reform. The existing statutes and our case law would be totally harmonized.