dissenting.
I must respectfully dissent because the trial court’s decision in the case within a case to preclude the jury from apportioning fault for the fatal accident among the State, Thur-low and John was an error of law.1 When defendant Hall committed malpractice, Eileen lost the opportunity to bring a lawsuit against Thurlow and the State as joint tort-feasors. In such a lawsuit, the State would almost surely have brought a cross claim against Thurlow for contribution. Even if Eileen had entered into a settlement with Thurlow prior to trial, she would have known that the State would probably insist that the issue of Thurlow’s fault should go to the jury for the purpose of apportioning responsibility for the accident. She would have been entitled to consider these tactical realities in deciding to settle with Thurlow.
In this case, Thurlow and Hall are not joint tort-feasors. Although Hall is a defendant instead of the State because Hall’s malpractice precluded a claim by Eileen against the State, Hall could not file a cross claim against Thurlow. Since the determination by the jury of Thurlow’s proportionate responsibility for the fatal accident does not serve Hall’s purposes, Hall has used the settlement between Eileen and Thurlow as a basis for keeping the jury from formally evaluating Thurlow’s responsibility for the accident on a verdict form. Instead, John and Ware, the state employee, became the focus of the fault allocation analysis. This position penalizes Eileen for settling with Thurlow and permits Hall to gain a procedural advantage in this lawsuit from his own malpractice. That result is unwise as policy (we should encourage settlements) and patently unfair.2
It is also troubling that Hall, having kept the issue of Thurlow’s negligence from formally going to the jury, proceeded to argue Thurlow’s negligence to the jury in great detail.3 Although the jury still concluded *677that Ware was more responsible for the fatal accident than John, the jury substantially reduced the recoverable damages because of John’s comparative negligence. While I understand that juries are told to reduce damages for comparative negligence by dollars and cents and not by a percentage, 14 M.R.S.A. § 156 (1980), I believe that the inability of the jury to assign a percentage of fault to Thurlow may well have magnified its view of John’s share of responsibility for the accident. With Thurlow formally removed as a player in the accident, John became a surrogate for Thurlow in the sense that he was the only party to whom the jury, in reaching its verdict, could assign responsibility for the condition of the car. Hall invited the jury to make such an assignment (“You don’t charge Mrs. Ware with the negligence of Mr. Thurlow.”) without Eileen having the opportunity to argue that the jury could formally assign much of the responsibility to Thurlow. The judgment should be vacated and the case remanded for a new trial.
. Although the trial court indicated in its decision denying the motion for a new trial that plaintiff did not press this issue at trial, a review of the record indicates that Hoitt has preserved this issue for appeal.
. The court states that Eileen’s own tactical decision deprived her of the opportunity to present Thurlow's negligence to the jury. I disagree. That statement fails to recognize that the case within a case (Hoitt v. Thurlow and the State of Maine) is a different case than this case (Hoitt v. Thurlow and Hall). The dismissal of Thurlow from this case because of the settlement with Eileen was irrelevant to the status of Thurlow in the case within a case. In that case, Eileen was entitled to present to the jury the case she was virtually assured of presenting before Hall committed malpractice. In this case, Eileen was entitled to settle with Thurlow without any effect on the lineup of the parties in the negligence case she was never able to file because of Hall’s malpractice. Having injured Eileen once with his malpractice, Hall should not have been allowed to injure her again with a trial tactic made possible by that same malpractice.
.Counsel for Hall argued to the jury as follows:
We are not here to determine what fault — what other fault was responsible, we are here to determine the actions, we are here to consider the actions of everyone, not only of Mr. Hoitt and not only Mrs. Ware but we are also here to consider what condition the vehicle was and whether that contributed to the accident ... [w]e don’t consider this case in a vacuum, you consider what factors contributed to this accident, all of the factors, all of the conditions. And again:
What about the other factors? What about the condition of this pickup truck? All of the testimony seems to suggest from the trooper ... that the main contributing factor for this *677accident was the defective condition of that vehicle and that braking system ... These were not good brakes. They were bad brakes. This was not a good vehicle. It was a bad vehicle and it wasn’t — as Mr. Greif said, it wasn't fit to be on the road. And he’s right. It wasn't fit to be on the road. Well, who put it on the road? Or who allowed it to be put on the road? Mr. Thurlow. Mr. Thurlow attached a phony inspection sticker— And again:
He [Mr. Thurlow] knew the vehicle was in a defective condition, he knew the vehicle or should have known that the brakes on this vehicle were not functioning properly. I asked him, you will recall, whether the brakes were spongy, and he did not deny it, or if he did, he certainly hesitated when he said it, but he clearly seemed uncomfortable by the question. And again:
Now, who’s responsible for that automobile? The pickup truck? Mr. Thurlow is clearly. You don’t charge Mrs. Ware with the negligence of Mr. Thurlow. Mr. Greif’s argument is if those brakes were faulty, Mr. Hoitt didn’t know it. Well, sure as — sure as we can be, Mrs. Ware didn't know it and we're comparing now, we’re comparing the conduct and finding out whether she was negligent, whether Mrs. Ware was negligent. We're comparing the conduct of Mr. Hoitt and what he knew and what he ought to know or — ought to have known and what he did and the actions he took with what she did. And I suggest to you that unfortunately when you do that comparison, there is no contest. Because Mrs. Ware I suggest was not negligent, even if you conclude that she was negligent, when you compare the conduct of Mr. Hoitt, his negligence is at least equal to hers, at least, and I suggest possibly greater. He might have a good case — they might have a good case against Mr. Thurlow, probably do, but they don’t have a valid claim against Mrs. Ware under our law in the State of Maine.
As a factual matter, there is no question that Thurlow’s role in this event was explored fully with the jury.