concurring in part and dissenting in part.
I concur in parts I, II, III, and V of the majority opinion. I cannot agree with part IV thereof and therefore I respectfully dissent to that part of the majority opinion.
In Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334, 351 (N.D.1983) (Layman. I), I expressed my concern as to the equity in requiring a defendant to assume the share of the liability of the plaintiff’s employer who, by statute, is immune from suit. I “reluctantly” concurred in the result reached therein because it appeared to me that “a resolution which does not penalize an employee who is injured through no negligence of his own is a more just resolution than one which would result in reducing the liability of a negligent third party at the expense of the innocent employee, ...” I further noted therein that an alternative resolution suggested by Justice Sand’s dissenting opinion had been discussed in Sayler v. Holstrom, 239 N.W.2d 276 (N.D.1976), but rejected because it was a matter for legislative attention.
The current issue is not, as the majority opinion recognizes, the same issue we faced in Layman I. In Layman I, because of the statutory prohibition against an employee’s bringing action against an employer under workmen’s compensation coverage, the plaintiff was powerless to bring the employer into the suit. There was no release by the plaintiff of any potential defendant. Here, the plaintiff, through his release of some, but not all, of the defendants has, by his own action, created immunity for those defendants with whom he has settled. I would not, therefore, extend the application of Layman I to this case. As Justice Gierke noted in his concurring opinion in Layman I, 334 N.W.2d at 352, we cannot “equate the giving of a voluntary release, as in the Bartels case, with the statutory provisions of § 65-01-08, N.D.C.C.”
I would apply the rationale of the majority opinion in Hosley v. Armstrong Cork Co., 364 N.W.2d 813 (Minn.App.1985), that under the common law equitable contribution is a flexible concept; that there is no standard or rule to be universally applied; and that relief is to be fashioned in light of the equitable dilemma presented. Although the majority attempts to distinguish Hosley on the basis of a Minnesota statute providing for statutory reallocation because North Dakota has no such statute, the opinion is clear in stating that because the bankrupt party (Johns-Manville Sales Corporation) “was formally severed from the proceeding and was not a party to the lawsuit the statute is inapplicable.” 364 N.W.2d at 816. I would therefore conclude that the liability of the employer, Custom, should not rest entirely with G.C. Peterson Company, Inc., but rather should be divided between Peterson and the settling defendants in proportion to their fault. Such a solution is in accord with this court’s decision in Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1978), and does no violence to the decision of the court in Layman I because, as noted above, here the plaintiff, Hoerr, voluntarily released the other defendants from liability.
*336It may be said that the solution I have suggested discourages settlements. That may be the result but I cannot conclude that encouraging settlements should be the touchstone of our judicial system. Rather, it appears to me that equity requires that the plaintiff, who is already permitted to recover the share of the employer’s liability from the other defendants, but who has released some, but not all, of those defendants from liability, should not be entitled to recover all of the employer’s share of liability from the nonsettling defendants.
LEVINE, J., concurs.