(dissenting).
I would reverse the result in this case. The plaintiff, Mae E. Cambera, was injured at work while operating a drill press manufactured by the defendant Sioux Tools, Inc. Cambera brings action against Sioux Tools who in turn interplead the employer, Bay-liner Boats as a third party defendant. Although Cambera could not sue her employer, Sioux Tools had the right to interplead Bayliner under our decision in Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977). The Lambertson doctrine needed to be established to correct inequities which had become established in our tort law. However, as illustrated by this case, in making the needed corrections under Lambertson, we have now created a new inequity.
Prior to Lambertson, the employer, Bay-liner Boats, would not have been a party. Admittedly, it would be pure speculation to assume what distribution of negligence a jury would have made between the plaintiff, Cambera, and the defendant, Sioux Tools. Nevertheless, if the plaintiff had been 50% or less at fault she would have been the prevailing party and recovered damages. Here, following the principles of Lambertson, although she is less than 50% negligent, she is not the prevailing party and recovers nothing. I cannot accept this or logically reconcile such a result.
I would propose as a solution to this unique problem that Sioux Tools, Inc. would be responsible for 20% of the total damage award of $100,000 or the sum of $20,000. I would award this to Cambera since it is less than the $65,000 she was entitled to having been found 35% negligent. I would not allow any subrogation rights to Bayliner Boats unless it had paid over to Cambera more than $45,000 in Worker’s Compensation Benefits since its percentage of fault was 45%. If Bayliner had not paid out $45,000 in benefits, I would allow it a future credit of $20,000 in benefits due, less deductions allowed by statute to the employee, after it had paid out $45,000 in benefits. ;
I would reverse and remand with instructions to enter judgment as set forth above.