In this case, immediately after the Kawasaki settlement, plaintiff stipulated that he would proceed at trial solely against Robinson on the basis of Robinson's alleged negligence, and would not seek to attribute any blame to Kawasaki. Since the statutes themselves do not answer this question, we must apply them in the manner that will harmonize and further their purposes of encouraging settlements while promoting equity and fairness in apportioning responsibility. This formula would leave Robinson with zero responsibility in damages. In none of these cited cases, however, was there anallocation of comparative fault against the plaintiff. Moreover, in the instant case, there is effectively only one settling defendant and one nonsettling defendant, as compared to the roster of defendants found in these other cases.
Settlement first tends to result in a more precise allocation of loss.
In the instant case, the one constant figure, which presumably would have been unchanged regardless of whether there had been an equitable apportionment against Kawasaki, is the gross verdict awarded by the jury, representingits assessment of plaintiff's total damages. The jury was asked to assess comparative fault only as between plaintiff and Robinson. We cannot know how culpable, if at all, the jury would have found Kawasaki to be compared to plaintiff and Robinson, but we do have plaintiff's and Kawasaki's own arms length estimate of Kawasaki's fair share of the damages in the form of their settlement. Thus, we must first deduct the Kawasaki settlement from plaintiff's total damages, since that represents the best measure we have of Kawasaki's share of plaintiff's damages. Under the fault first approach as applied by the Appellate Division, the nonsettling defendant in the instant case would escape responsibility altogether since plaintiff's doubly discounted damages would be completely setoff by pretrial settlement.