concurring.
Respectfully, I concur in results only.
The circumstances in this case called for nothing beyond a simple application of our decision in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970). In Orr, using KRS 454.-040 only for the purpose of analogy, our Court addressed the problem that arises when the plaintiff settles with one of several named defendants before trial and held that when this occurs the jury should be instructed to apportion damages between settling and nonsettling defendants. That is exactly what the trial court’s instruction permitted in the present case. Thus, I agree with the result reached in the Majority Opinion: since the jury apportioned liability zero against the settling defendant, under Orr v. Coleman it was error to give the nonsettling defendant a credit on the judgment against him for the amount previously paid by the settling defendant.
This result is reached by simple application of Orr v. Coleman, and this is as far as the present Opinion should go. The Majority Opinion should not have used the occasion to expound views on apportionment issues not involved in this case. The Majority Opinion is seriously flawed for two reasons:
1) In tracing the history of apportionment law in this jurisdiction from the enactment of KRS 454.040 to present, the Majority Opinion erroneously characterizes the meaning and effect of a number of earlier cases:
“The law has now developed to the point that in tort actions involving the fault of more than one party, including third-party defendants and persons who have settled the claim against them, an apportionment instruction, if requested, must be given whereby the jury will determine the amount of the plaintiff’s damage and the degree of fault to be allocated to each claimant, defendant, third-party defendant, and person who has been released from damage. The extent of the liability of each is a several *822liability and is limited to the degree of fault apportioned to each.” Majority Op., p. 820.
It is error to characterize the law as having already “developed to the point” as stated in this quote. The fact that apportionment is now permitted between plaintiff and defendant under the comparative negligence doctrine adopted in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), does not change the situation one iota. No decision of this Court thus far has presumed to overrule KRS 454.040, the apportionment statute, or, for that matter, KRS 412.030, the contribution statute.
KRS 454.040, the apportionment statute, requires that where there are multiple “defendants” the jury should be permitted to either apportion damages or to award damages in a single sum against all defendants, in the jury’s discretion. As stated in Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137 (1965), under this statute a jury may return a verdict allowing the plaintiff recovery against one defendant or another, or against both jointly, or against each in different amounts.
KRS 412.030, the contribution statute, permits a defendant a third-party complaint or a separate action for contribution, as an alternative to seeking an apportionment instruction.
Floyd v. Carlisle Construction Co., Ky., 758 S.W.2d 430 (1988), discussed in the Majority Opinion, was concerned only with a settling tortfeasor who was not a party to the lawsuit. Floyd v. Carlisle Construction held a nonsettling defendant was entitled to an apportionment instruction when the claimant had settled before filing suit with a person potentially liable as a joint tortfeasor, even though such person had never been named as a defendant in the lawsuit. The subject of apportionment against persons who are nonparties and who have not paid anything to settle with the claimant was not before us then, as it is not before its now. Justice Vance’s opinion in Floyd v. Carlisle Construction sought to go further in a footnote suggesting the Majority would be prepared to overrule Nix v. Jordan, Ky., 532 S.W.2d 762 (1975) if the issue were before them, and in his separate Concurring Opinion, but neither of these is precedent tying the hands of our Court in future cases. Not until now have his views reached the status (albeit dicta) of being incorporated in a Majority Opinion.
2) The Majority Opinion in the present case, as did Justice Vance’s separate Concurring Opinion in Floyd v. Carlisle Construction, supra, takes on the meaning and application of the apportionment section of “House Bill 551, enacted by the General Assembly in 1988,” now codified as KRS 411.182. As I stated in my Dissent in Floyd v. Carlisle Construction, this is “a statute we have yet to consider.” The meaning and constitutionality of H.B. 551 are not before us in this case which was tried before its effective date. Surely we should not bind our hands in future cases by the present decision, nor should we close our minds to issues yet to be briefed and argued before this Court by prejudging the meaning and application of this statute in the present Opinion.
Neither KRS 454.040 nor KRS 412.030 was expressly repealed by H.B. 551, and the effect of H.B. 551 on these statutes remains to be decided in an appropriate case by this Court. We do not, and should not decide in the present opinion a matter that will be of great importance in the future because of the large number of civil cases it will affect.
The difficulties experienced at the trial court and in the Kentucky Court of Appeals in the present case were generated by the ill-conceived result that we reached in Burke Enterprises, Inc. v. Mitchell, Ky., 700 S.W.2d 789 (1985). In my Dissenting Opinion in Burke, I warned of the internal inconsistency between the principles of law involved and the result reached. The Burke Enterprises case should have been limited to its facts, a situation where no apportionment instruction was requested and none given, so the nonsettling defendant was still entitled to a credit against the judgment on the amount previously paid by a settling defendant under *823traditional principles of tort liability stated in Restatement (Second) Torts, § 885(3).
The present Opinion can but add to the vexatious problems faced by our trial courts seeking a way to deal with unworkable opinions. Since we seem unable to make the situation better, at least until we are further advised, our prime concern should be to take care to do no harm. The expansive nature of the Opinion in this case adds to the problems faced by our trial courts.
COMBS and LAMBERT, JJ., join this concurring opinion.