concurring and dissenting.
I concur with that portion of the majority opinion which addresses the occasional seller rule in Section 402A of the Restatement (Second) of Torts, comment (f). Nevertheless, I would reverse for a new trial on the negligence claim against Griffin Industries on the view that apportionment of libility was erroneous by allowing an instruction against Kahns.
The majority opinion approves allowing the jury to apportion liability against Kahns. Appellee was employed by Kahns. As such, Kahns was protected from civil liability by the exclusive remedy provision of the Workers’ Compensation Act, KRS 342.690. Of course, as appellee’s employer at the time of his injuries, Kahns was required to pay Workers’ Compensation benefits. In circumstances where an employee is injured by the negligence of a third party, but where the employer is required to pay Workers’ Compensation benefits, the employer is entitled to recover such sums from the party at fault. To facilitate such recovery, KRS 342.700 authorizes an employer to intervene in civil litigation brought by the employee against a negligent third party, and, if the third party’s negligence is established, recover such sums as have been paid in Workers’ Compensation benefits.
The majority has reasoned that the employer’s intervention into the civil action for recovery of Workers’ Compensation benefits it had paid, and the settlement of the claim between the employer and the third party *104(Griffin Industries) constitute the active assertion of a claim and authorizes apportionment of liability against the employer. With this I must disagree. After this Court’s departure from the rule in Nix v. Jordan, Ky.App., 532 S.W.2d 762 (1975), whereby a plaintiff was entitled to sue whatever negligent party the plaintiff desired to sue, leaving to the defendant the responsibility to seek indemnity or contribution from others who might be liable for some or all of the injuries sustained, we adopted the view that apportionment was proper against whomever the plaintiff had actively asserted a claim. Thus, if a plaintiff settled with a party prior to commencement of litigation and thereafter sued one or more other parties, at trial, apportionment was proper against those defendants who remained as well as those who had settled. This was the rule in Floyd v. Carlisle Construction Company, Ky., 758 S.W.2d 430 (1988). The key to application of such theory was allowing apportionment against all parties who were or might be legally liable to plaintiff.
In the case at bar, Kahns was not and could not be liable to plaintiff by virtue of the exclusive remedy provision of the Workers’ Compensation Act. Plaintiff had no right to bring litigation against his employer. His only claim against his employer was for Workers’ Compensation benefits. The employer entered this litigation not to obtain indemnity or contribution from plaintiff, but from Griffin Industries, the manufacturer of the device which injured plaintiff. The fact that Griffin “bought its peace by paying Kahns” should not entitle Griffin to an apportionment instruction whereby Kahns can be adjudged liable for any part of plaintiff’s injuries. The effect of allowing an apportionment against Kahns was to permit Griffin to present and argue irrelevant evidence as to Kahns’ negligence. Griffin was allowed to make its case against an empty chair. This fact quite probably explains the 11-1 jury verdict against Jones on his negligence claim against Griffin.