concurring.
I concur with the majority opinion because it reaches a proper result as to the contesting parties. It leaves unanswered, however, the question of whether an employer is liable by way of indemnity to a subcontractor who has been held liable for the injury of an employee of another subcontractor who claims that the employer’s negligence was partly or wholly responsible for the injury. It also leaves unanswered, as did our opinion in Burrell v. Electric Plant Board, Ky., 676 S.W.2d 231 (1984), the question of whether indemnity can be limited constitutionally to the amount of the employer’s liability for worker’s compensation.
When the legislature required an employer to compensate an injured employee even though the employer was wholly without fault, it also sought to immunize the employer from all further liability on account of the injury, including tort liability for negligence.
At the same time, the injured employee was allowed to pursue a tort claim against *465a negligent third party. In the event of recovery by the employee against a negligent third party, the employer was allowed to recoup the amount it had paid as worker’s compensation.
This scheme works well when the employer is free from negligence and a third party is wholly at fault. In many cases, however, the injury to an employee results from the concurrent negligence of an employer and a third party. In such cases the employee can recover the full amount of his damages from a third party who is the only party at fault in causing those damages. The employer, though partly at fault, can recoup all of the sums it has paid in worker’s compensation. The employer, even though partially or largely at fault, escapes without any cost on account of the injury, and the third party, although only partially at fault, is stuck with the entire cost. This does not comport with the principle of basic fairness.
To escape this unfairness, the third party often seeks indemnity or contribution from the employer because he has had to pay damages caused by the negligence of the employer. The third party then runs headlong into a statute which purports to limit the liability of the employer to the third party to the amount for which the employer is liable for worker’s compensation benefits.
If that statute is held unconstitutional, the employer is subject to liability in tort by way of indemnity or contribution and also liability for worker’s compensation benefits. This is contrary to the intent of the legislature and also fails to comport with the principle of basic fairness.
I believe we should construe our statute to uphold its constitutionality, and at the same time, to carry out the intent of the legislature.
In Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), we adopted the principle that in a society where damage is based upon fault, liability for damage should be measured by the degree of fault. Among those concurrently at fault, each should bear only the proportion of the loss equal to his proportion of the fault.
It seems to me the apportionment of liability in compensation cases where both the employer and a third party negligently cause the injury would accomplish the precise intent of the Worker’s Compensation Act, and at the same time, end all constitutional questions concerning indemnity and contribution.
If an employee is injured by the concurrent negligence of his employer and a third party, he should be entitled to worker’s compensation benefits from his employer. He should also be entitled to pursue a claim against the third party who, in turn, could implead the employer. A jury could then determine the amount of damage caused by the injury and could apportion liability between the third party and the employer.
In that manner, the third party would be held responsible only for the proportionate part of the damage caused by him. There would be no need for indemnity or contribution.
The proportionate part of the damages attributed to the employer could be deemed to be discharged by the payment of compensation benefits. This would give effect to the intent of the legislature that the liability of the employer should be limited to the amount of his liability for compensation benefits.
Instead of recouping all of his compensation benefits, the employer should recover from the third party only in proportion to the percentage of causation attributed to the third party.
Before there can be an apportionment of liability between a defendant and a third-party defendant, this Court, of course, would have to overrule Nix v. Jordan, Ky., 532 S.W.2d 762 (1975). This should be done in any event.
Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) holds that liability can be apportioned between two defendants, even when one of them has settled the claim against him before trial. But Nix v. Jordan, supra, limits apportionment to defendants *466who were defendants in the original action and does not permit apportionment between a defendant in the original suit and another defendant brought in by third-party proceedings. Such a third-party defendant is a defendant nonetheless and is answerable for the damage caused by him.
Our decision in Hilen v. Hays, supra, adopts the principle of liability according to fault. In Prudential Life Insurance Company v. Moody, Ky., 696 S.W.2d 503 (1985), we adopted the corollary that no defendant should have liability for damages in negligence • cases greater than his degree of fault.
There is no longer any valid reason to refuse to allow apportionment of liability among all who are found to be at fault and thus obviate any necessity for contribution or indemnity between them.
AKER, J., joins in this concurring opinion.