(concurring specially).
I concur with the court’s judgment but disagree about the extent to which counsel may inform the jury about the effect of its answers to apportionment of fault. I believe counsel should be able to disclose explicitly that plaintiff Yates may not recover from his employer, Mathews Engineering, but only from defendant Hanna Mining.
The court delivered the following instruction:
Wiley Yates may not recover from a defendant when plaintiff Wiley Yates’ fault is as great or is greater than the fault of the individual defendant.
In the context of this case the instruction is false because Yates cannot, in fact, collect from the individual third-party defendant, Mathews Engineering. It is dangerous and unprecedented to permit the jury to be instructed falsely.
Minn.R.Civ.P. 49.01(2) should be interpreted literally. The jury should be informed of the effect of its answers. In Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 696 (Minn.1980), the court approved of a final argument by the plaintiff that he would get nothing if found to be 50 percent or more negligent. Likewise, Yates should be able to tell the jury that he is unable to recover under any circumstances from Mathews Engineering and may recover from Hanna Mining only if his fault is less than Hanna’s. Less than full disclosure impedes the language and purpose of Rule 49.01(2).
The full disclosure rule does not necessitate telling the jury that workers’ compensation is involved. The jury can be informed that Yates cannot recover from his employer without being told why. Throughout a trial the jury is exposed to rulings which deprive it of considering evidence; it is not necessarily informed why the evidence is kept out. It is suggested that the jury improperly may speculate about why Yates never sued and does not seek a recovery from his employer. Herein lies the crux of the problem. The trial judge may be forced into the uneviable situation of making judgment calls during final argument about how closely a plaintiff may approach the line of full disclosure. The semi-disclosure rule is impractical.
It is suggested that full disclosure will unfairly prejudice defendant Hanna Mining. This is false. Hanna Mining’s situation here is no different from that of a defendant in a simple multi-party suit. In each instance the jury should be permitted to know the precise circumstances under which a plaintiff may recover.