I concur in the result reached by the majority opinion but reject my colleagues’ embrace of the proposition that Labor Code section 4558, subdivision (d) is “plain, clear and unambiguous.” It is not only patently ambiguous and confusing but it is also inexplicably inconsistent with other statutory language dealing with similar subject matter.
Bliss argues at some length that the reference in Labor Code section 4558, subdivision (d), to the employer’s failure to discharge “his or her comparative share of the judgment” indicated a legislative intent to inject principles of comparative fault and partial indemnity. (Italics added.) I concur with the view of the majority that that argument must be rejected. However, that a dispute even arose must be laid at the door of legislative imprecision.1 If the Legislature intended, as I believe it did, to permit only contribution and to bar indemnity claims entirely, why then the use of the term “comparative”? Why not simply use the same terminology of “pro rata share” as set out in Code of Civil Procedure sections 875 and 876?2
A review of the legislative history of Labor Code section 4558 unfortunately sheds no light whatever on what the Legislature may have had in mind when it incorporated the term “comparative share” in subdivision (d). The term comparative has primarily been used to refer to the relative liability of two or more tortfeasors whose degree of fault is compared in order to apportion responsibility for a judgment. For example, as the court *1261noted in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598 [146 Cal.Rptr. 182, 578 P.2d 899], “. . . the current equitable indemnity rule should be modified to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.” (Italics added). This rule modified the previous office of indemnity which had been limited to accomplishing the transfer of the entire loss from one tortfeasor to another, who in justice and equity should bear it. On the other hand, “[contribution distributes the loss equally among all tortfeasors, each bearing his pro rata share.” (Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 73 [38 Cal.Rptr. 490, 8 A.L.R.3d 629].)
This oxymoronic concept of comparative contribution3 seems to be simply a case of poor draftsmanship. However, a further and far more significant example is demonstrated by the seemingly unnecessary conflict between Labor Code section 4558, subdivision (d) and the general contribution provisions set out in Code of Civil Procedure section 875, subdivision (c). Under the latter section the right of contribution may be enforced by a tortfeasor who has either discharged the judgment or paid more than his pro rata share.
Under Labor Code section 4558, subdivision (d), on the other hand, the exact opposite is true. A third party judgment tortfeasor may seek contribution from an employer who has not paid his comparative share without any requirement that the party who seeks such contribution have paid more than his share of the judgment (or any portion for that matter); and, what is even more puzzling, there is no provision in subdivision (d) allowing the employer to seek contribution if the third party does not pay his proper share.4 In such event, is the employer permitted to fall back on Code of Civil Procedure section 875, subdivision (c)? If so, then why not provide for the same procedure in the Labor Code provision? If not, then what is the policy reason for denying to an employer the rights enjoyed by every other class of joint tortfeasor? If there is some significant or comprehensive legislative scheme hidden here which is furthered by such differences, it has escaped this Justice.
Petitioner’s application for review by the Supreme Court was denied August 16, 1989.
The majority’s justification of the legislative terminology (see maj. opn., ante, fn. 2) only seems to confirm this conclusion.
Code of Civil Procedure section 875 provides in pertinent part: “(a) Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.
“(b) Such right of contribution shall be administered in accordance with the principles of equity.
“(c) Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.
“(f) This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of
contribution between them.” (Italics added.)
<1
Code of Civil Procedure section 876, subdivision (a) provides: “(a) The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them.”
A term also used in Code of Civil Procedure section 877.6, subdivision (c), but with no apparent meaning other than “pro rata.”
It seems clear from the text of subdivision (d) that the authority for “a defendant” to seek contribution does not include an employer defendant since (1) the term “employer” is separately used and (2) the only precondition to the right to seek contribution is that the employer has not discharged “his or her comparative share.”