dissenting.
Respectfully, I dissent.
I agree that the result reached in this case is correct. But we cannot be logical in reaching this result unless we also overrule Orr v. Coleman, Ky., 455 S.W.2d 59 (1970). As the opinion now stands, the nonsettling defendant, Burke, was permitted an option whether to ask for an Orr v. Coleman instruction or to keep silent and then ask for a credit against the amount of the verdict for the amount previously paid by the settling defendant, Ground Hog, Inc.
A decision that permits a credit is correct. But a decision that permits this option is erroneous. This case is another glaring example of what is wrong with Orr v. Coleman. Orr v. Coleman doesn’t fit in the tort system and it doesn’t work.
By its explicit terms, KRS 454.040, the apportionment statute transmogrified in Orr v. Coleman, applies only where the jury decides among parties on trial who are multiple defendants. KRS 454.040 provides that after the jury decides upon the correct amount for the injury, the jury then elects whether (1) to apportion the award by percentages among those parties’ defendant whom it has found liable, or (2) to return its award in a single sum for which these defendants are jointly and severally liable. In either event, when the verdict thus apportioned is thereafter paid the plaintiff receives the full amount the jury has decided is appropriate for the injury-
On the other hand, under Orr v. Coleman, supra, there is no election. The jury is required to apportion its award by percentages based on legal causation between nonparties who have settled and are no longer a party and the nonsettling defendants. There can be no assessment against a person who is not at fault. Where the former defendant who has settled is found not at fault Orr v. Coleman runs contrary to the tort system because then the partial satisfaction paid by the former defendant in settlement simply provides a windfall for the plaintiff.
Even where the jury finds fault on the part of both the settling and nonsettling defendant, Orr v. Coleman works against the grain of the tort system. The plaintiff will never be paid the amount the jury has decided is appropriate for the injury unless the percentage of the award set by the jury against the settling defendant, when translated to dollars, and the percentage of the award set by the jury against the nonset-*798tling defendant, when translated to dollars, total the jury’s award. Invariably the plaintiff will be overcompensated or under-compensated. If it adds up to more, the plaintiff gets unjust enrichment and double recovery. If less, the nonsettling defendant gets a windfall and the plaintiff gets shorted on the amount the jury has decided is appropriate for the injury.
To use the present case as an illustration: the jury decided Mitchell was entitled to compensation for the injury in the amount of $17,955.76. Ground Hog, Inc. has prepaid $10,000 as a partial satisfaction of the amount due. Under Orr v. Coleman, the only way that Mitchell would be paid the additional amount which is appropriate, $7,955.76, would be in the unlikely event that the jury would have found both Ground Hog and Burke at fault and then apportioned 55.7 percent against Ground Hog and 44.3 percent against Burke.1 In that event, and no other, Burke would pay an amount which, when added to what Ground Hog has already paid, would add up to the approximate compensation to which Mitchell was entitled according to the decision of the jury. Any result other than Ground Hog’s 55.7 percent and Burke’s 44.3 percent is a windfall for either the movant, Burke, or the respondent, Mitchell.
Orr v. Coleman is an opinion which defies logical analysis. It cannot be integrated to work in tandem with the main body of tort law. It should be overruled as a precedent, and the principle discarded. In its place we should rejoin the mainstream of American law, and simply give the nonset-tling defendant credit in the judgment for whatever payments have been made by other persons which constitute a partial satisfaction for the harm the claimant has sustained.
. Of course, this presupposes that Ground Hog, Inc. was found liable, a condition precedent to apportionment and presumably nonexistent in this case.