Simeon v. T. Smith & Son, Inc.

KING, Circuit Judge,

with whom JERRE S. WILLIAMS, Circuit Judge, joins specially concurring:

I concur fully in the majority opinion. The majority opinion holds the defendants jointly and severally liable, to the extent of their respective liabilities, for Si-meon’s injuries. In dissent, Judge Garwood expresses his dissatisfaction with this result. Although Judge Garwood agrees that the liability of Smith and Lu-mar should not be entirely several, it is his opinion that Simeon’s contributory negligence makes the “traditional” joint and several liability imposed in the majority opinion “inappropriate.” According to Judge Garwood, what is appropriate— meaning, in his estimation, more fair and reasonable — is to determine each defendant’s liability using a “modified” version of joint liability. I write separately to explain why, despite Judge Garwood’s appeal to fairness and reasonableness, I cannot join with him in his attempt to implement modified joint liability in this ease.

To understand why I reject Judge Garwood’s proposal, it is necessary to first understand the changes that accepting his proposal would work and the backdrop against which those changes would be carried out. First, the changes: If all defendants are solvent, a plaintiff should, under both systems, finally recover the same amount — the total amount of the judgment minus that amount which represents the plaintiff’s contributory negligence. 1 A difference between the two systems when the defendants are solvent, however, comes in the manner in which recovery of this amount may be made. Under a traditional joint and several liability system, a plaintiff can recover from any defendant the entire amount which all of them owe him. But under the proposed system of modified joint liability, the amount that a plaintiff can recover from any one defendant is restricted by more than just the plaintiff’s contributory negligence; it is also restricted by the relationship between the individual defendant’s negligence and the plaintiff’s contributory negligence. Therefore, under the system Judge Garwood proposes, a plaintiff can recover as a total from all *1449 defendants an amount equal to the entire judgment minus the plaintiffs contributory negligence, but cannot recover from any one defendant an amount more than “the same fraction that that defendant’s negligence is of the total negligence of the plaintiff and that particular defendant.” The system is implemented by entering judgment jointly in an amount which is less than the maximum amount for which any individual defendant is liable, and judgment severally for each defendant in an amount equal to the maximum that individual defendant owes (when measured by the “same fraction” comparison) minus the amount for which he has been found to be jointly liable. 2

“Modifying” traditional principles of joint and several liability as Judge Garwood suggests, therefore, would work at least one clear change: Since a defendant’s joint liability would become defined by a sum which is less than the total amount of the defendants’ combined liabilities, a plaintiff could recover the total amount he is owed only by enforcing the judgment against each and every defendant. More importantly from Judge Garwood’s point of view, this change would necessarily work a second change should any one defendant become insolvent (or for any other reason fail to pay its share of the judgment): A plaintiff would be unable to recover, even if he enforced the judgment against every remaining defendant, that which he could recover from any one remaining defendant under traditional joint and several liability — the total amount of the judgment minus that amount which represents the plaintiff’s contributory negligence.

Understanding that modified joint liability alters the way in which a plaintiff collects his judgment and, in some cases, decreases the total amount of the judgment a plaintiff would finally receive, is, however, only the first step toward understanding the ramifications of the system Judge Garwood proposes. The second step is understanding the backdrop against which the modification would be played out. In this case, Simeon obtained recovery from Lumar and Smith under two separate and different theories. Following Judge Garwood’s suggestion to adopt modified joint liability would, therefore, change the theory of liability and, consequently, the manner and amount of recovery for two categories of claims — Jones Act claims and general maritime claims. That concerns me. Simply put, I do not agree with Judge Garwood that we are free to modify the traditional rule of joint and several liability under the Jones Act or that we should modify it under general maritime law.

*1450 Judge Garwood finds the freedom to implement a modified system of joint liability in three basic propositions. First is the proposition that “[a]s an admiralty court we are not constricted by some comparative fault statute that might be construed to expressly or impliedly require traditional joint liability.” Second is the proposition that “the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime.” Third is the proposition that neither the Supreme Court nor this court has ever, in the process of adhering to traditional joint and several liability, specifically rejected the modified version proposed today. I, however, disagree with the truth of the first proposition and find less freedom in the second and third propositions than Judge Garwood does. I begin with the first proposition and Simeon’s Jones Act claim.

The Jones Act, of course, gives a con-gressionally prescribed, statutory remedy to “[a]ny seaman who shall suffer personal injury in the course of his employment.” 46 U.S.C.App. § 688(a). In defining the scope of the remedy which the Jones Act affords, Congress specifically decreed that “all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.” Id. Consequently, as the majority opinion explains, the Jones Act incorporates the Federal Employers’ Liability Act (“FELA”) — a statute whose federal rights are defined in part by the FELA’s specific statutory provisions and in part by the common law. By incorporating the FELA into the Jones Act, the Supreme Court has explained, Congress meant that “those contingencies against which Congress has provided to ensure recovery to railroad employees should also be met in the admiralty setting.” Cox v. Roth, 348 U.S. 207, 209 , 75 S.Ct. 242, 244 , 99 L.Ed. 260 (1955). One of the assurances of recovery which the FELA provides railroad employees is that “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.... ” 45 U.S.C. § 53 . In other words, the FELA expressly “imposes comparative fault principles by congressional enactment” and therefore, to meet the same contingencies for Jones Act plaintiffs, so does the Jones Act. Chotin Transp., Inc. v. United States, 819 F.2d 1342 , 1350-51 n. 5 (6th Cir.1987); accord IB S. Bellman, A. Jenner, B. Chase, J. Loo & H. Prival, Benedict on Admiralty § 25 (7th ed. 1986); 2 M. Norris, The Law of Seamen § 30:42 (4th ed. 1985). See also In re Roy Crook & Sons, Inc. v. Allen, 778 F.2d 1037, 1040 (5th Cir.1985) (holding that “Section 53 of the FELA is part of the Jones Act”); Neal v. Saga Shipping Co., S.A., 407 F.2d 481, 485 (5th Cir.), cert. denied, 395 U.S. 986 , 89 S.Ct. 2143 , 23 L.Ed.2d 775 (1969) (same).

Because of section 53 of the FELA, I cannot agree with Judge Garwood’s assertion that we are not, in this case, faced with a comparative fault statute and, therefore, are not constricted from modifying the traditional rule of joint and several liability; with respect to the Jones Act claim, we are faced with a comparative fault statute and, I think, one that is very constricting. Section 53 of the FELA explicitly expresses Congress’ intent that a plaintiff should recover the total amount of the judgment minus only that amount which represents the plaintiff’s contributory negligence, with no exception made for cases in which one or more defendants either do not or cannot pay their share of the judgment. As I explained above, one change which Judge Garwood’s “modified” system of joint liability would work — in fact, the change which it is specifically designed to work — would be to diminish, when a defendant does not pay, a contribu-torily negligent plaintiff’s recovery below the point the statute provides. It is clear to me, therefore, that Judge Garwood’s system would alter the assurance of recovery to Jones Act plaintiffs which Congress provided by incorporating the FELA into the Jones Act. Under my understanding of this court’s role in our tripartite system of government, we simply cannot — when it would undermine that which Congress spe *1451 cifically chose to do — do that which Congress failed to do.

Even if the FELA’s comparative fault provision did not stay my hand in modifying traditional joint and several liability under the Jones Act, I would still find it necessary to reject Judge Garwood’s proposal with respect to that claim. As the majority opinion explains, unless the FELA dictates otherwise, the Jones Act is construed in accord with the common law. Without the statutory impediment of section 53, therefore, the issue would shift from whether our role as an enforcer of congressional intent prevents us from modifying the principles of joint and several liability under the Jones Act to whether principles of stare decisis cut off the course Judge Garwood would have us take. That issue is resolved, I find, by a fair reading of the Supreme Court’s decision in Edmonds v. Compagnie Generate Transatlantique, 443 U.S. 256 , 99 S.Ct. 2753 , 61 L.Ed.2d 521 (1979).

Edmonds was a longshoreman; he was injured while unloading cargo for a shipowner who had contracted with Edmonds’ employer, a stevedoring concern, for Ed-monds’ work. Because of the-injury, Ed-monds received benefits from his employer under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). He also sued the shipowner for negligence under 33 U.S.C. § 905 (b), a provision of the LHWCA added by Congress in 1972 to specifically authorize such suits. At trial, the jury returned the following verdict: Total damages to Edmonds were $100,000; responsibility for those damages was divided between Edmonds (10%), the employer (70%), and the shipowner (20%). The district court implemented the verdict by reducing Edmonds’ recovery by his own negligence (10%). The court, could not, however, permit Edmonds to recover any of the judgment from the employer — the employer was not a party to the suit because the LHWCA specifically limited its liability. Therefore, despite the fact that the shipowner was only 20% responsible for Ed-monds’ injuries, the district court held the shipowner responsible for the remaining 90% of Edmonds’ damages. The shipowner appealed, finally reaching the United States Supreme Court.

To the Court, the shipownér made two arguments: (1) that in the process of specifically authorizing negligence suits against shipowners through the LHWCA’s 1972 amendments, Congress limited a shipowner’s liability to only that proportion of plaintiff’s damages which the shipowner actually caused — in this case, 20%; and (2) that even if Congress did not decree proportionate liability, the Supreme Court should, using its authority to fashion general maritime law, limit the shipowner’s liability to its proportionate share of the longshoreman’s damages. The Supreme Court began its examination of the arguments by remarking that “[ajdmiralty law is judge-made law to a great extent” and that prior to 1972, a longshoreman’s negligence action against a shipowner was recognized by general maritime law, not by statute. Id. at 259-60 , 99 S.Ct. at 2755-56 . The way in which general maritime law fashioned an injured plaintiff’s recovery prior to 1972, the Court explained, was decided when the Supreme Court added traditional joint and several liability to that body of law in 1876:

We stated the common-law rule in The Atlas and adopted it as part of admiralty jurisprudence: “Nothing is more clear than the right of a plaintiff, having suffered such a loss, to sue in a common-law action all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss.”

Id. at 260 n. 7, 99 S.Ct. at 2756 n. 7 (quoting The Atlas, 93 U.S. 302, 315 , 23 L.Ed. 863 (1876)). Importantly, although The Atlas was not a case in which the plaintiff was contributorily negligent in causing the injury for which recovery was sought from the defendants, the Court made it clear that a plaintiff’s contributory negligence had never changed the traditional rule:

As [admiralty law] had evolved by 1972, a longshoreman’s award in a suit against a negligent shipowner would be reduced *1452 by that portion of the damages assignable to the longshoreman’s own negligence; but, as a matter of maritime tort law, the shipowner would be responsible to the longshoreman in full for the remainder, even if the stevedore’s negligence contributed to the injuries. This latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor’s negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident.

Id. at 259-60, 99 S.Ct. at 2755-56 .

After establishing the state of the law prior to the LHWCA’s 1972 amendments, the Court turned its attention to the amendments themselves and their effect on the judicially-created doctrine of joint and several liability; an analysis of the amendments led the Court to conclude that Congress had not upset the “ ‘long-established and familiar principle]’ of maritime law by imposing a proportionate-fault rule.” Id. at 263 , 99 S.Ct. at 2758 . The Court moved, therefore, to the remaining issue: whether it was “free to and should change [the shipowner’s] role so as to make the vessel liable only for the damages in proportion to its own negligence” when a longshoreman sues the vessel owner for negligence under the LHWCA. Id. at 271 , 99 S.Ct. at 2762 . To this question, the Court answered “no”:

Though we recently acknowledged the sound arguments supporting division of damages between parties before the court on the basis of their comparative fault, see United States v. Reliable Transfer Co., 421 U.S. 397 [ 95 S.Ct. 1708 , 44 L.Ed.2d 251 ] (1975), we are mindful that here we deal with an interface of statutory and judge-made law.... By now changing what we have already established that Congress understood to be the law, and did not itself wish to modify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in these circumstances. Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned.

Id. at 271-72 , 99 S.Ct. at 2762 (footnote and citations omitted).

These passages from Edmonds explain why I believe that more than section 53 of the FELA constrains this court from modifying the traditional rule of joint and several liability in the Jones Act context. 3 The Supreme Court set down in Edmonds a general principle that I, as a member of an inferior court, am obliged to follow: Even though the judiciary has the power to alter the common law of admiralty, it should not use that power to change traditional rules of liability, and specifically the traditional *1453 rule of joint and several liability, when to do so would affect an “interface of statutory and judge-made law” — that is, a statute whose provisions are defined in part by Congress and in part by the common law of admiralty. That the principle applies in this case just as it did in Edmonds is, to me, beyond doubt. We are focused, of course, on the same traditional rule which concerned the Court in Edmonds . In addition, we deal with an “interface of statutory and judge-made law” as surely as did the Court in Edmonds ; the only difference —and it is a difference without distinction —is that here, common law and statutory law interface within the structure of the Jones Act instead of within the LHWCA. Nor, as we explained above, can there be any doubt that the modification which Judge Garwood proposes changes the law of joint and several liability; as would have been the case by adopting proportionate liability in Edmonds , therefore, by adopting Judge Garwood’s proposal, this court would be changing what “Congress understood to be the law” and effectively altering a statute “by causing it to reach different results than Congress envisioned.” As I read Edmonds , that we cannot do.

It is clear from his dissent, however, that Judge Garwood has a different opinion about the reach of Edmonds than I do. While I focus on the general principle which led the Court to its conclusion in Edmonds , Judge Garwood focuses on the conclusion without reference to the general principle. The precise holding of Ed-monds, Judge Garwood points out, is simply that a court cannot apply a proportional liability rule in place of joint and several liability in an LHWCA action for negligence brought by a longshoreman against a shipowner. That holding, Judge Garwood says, does not confine us here. More specifically, Judge Garwood argues, since negligence claims under the LHWCA are the only claims explicitly discussed in Edmonds, Edmonds says nothing about negligence claims under the Jones Act. Similarly, since replacing traditional joint and several liability with proportional liability was the only action the Supreme Court specifically forbade courts from taking, Ed-monds does not prevent courts from abandoning traditional joint and several liability in favor of the modified joint liability theory Judge Garwood urges. There is a problem, I think, with Judge Garwood’s attempt to limit Edmonds by distinguishing its facts and ignoring, without distinguishing, its governing principles: the concept of stare decisis, as it relates to the duty which inferior courts owe to the decisions of the Supreme Court, does not permit it. See Hutto v. Davis, 454 U.S. 370, 374-75 , 102 S.Ct. 703, 705-06 , 70 L.Ed.2d 556 (1982). As Judge Higginbotham recently explained:

Obedience' by inferior ■ courts to the command of the Supreme Court is essential to the administration of our complex court structure. For the Supreme Court to fulfill its unique role set by Article III, the federal system simultaneously must encourage candid expression by inferior courts while demanding acceptance of the Supreme Court’s role as the final arbiter.... As an inferior court we must not allow our version of a “correct” result to deceive us into semantic games of reformulation and hair splitting in order to escape the force of a fairly resolved issue.

The notion that as an inferior court we are free to strip content from principle by confining the Supreme Court’s holding to .the precise .facts before it is a heady assertion indeed; that notion ignores our role. Our duty to the Supreme Court precedent is broader than our duty to abide our own precedent and that of courts on our level. When the duty of obedience flows horizontally and not vertically, a later court may appropriately after due regard for our necessary dependence upon panel harmony in a multi-panel court and to the values of stare decisis such as predictability and settlement of expectation, confine the first case to its facts by concluding, in the words of Karl N. Llewellyn, that: “This rule holds only to redheaded Walpoles in pale magenta Buick cars.” Our duty is different when the reach of precedent is vertical.

*1454 Bhandari v. First Nat. Bank of Commerce, 829 F.2d 1343, 1352 (5th Cir.1987) (en banc) (Higginbotham, J., specially concurring). I believe the principle which led the Court in Edmonds to refrain from tampering with the rule of traditional joint and several liability under the LHWCA applies equally to the Jones Act claim Simeon has brought before us. Consequently, since the modification to the existing rule of joint and several liability which Judge Garwood proposes is contrary to that principle, I reject — as I must — the modification with respect to Simeon’s Jones Act claim.

Along with his Jones Act claim against Smith, however, Simeon brought a general maritime claim against Lumar. This general maritime claim, being of purely judicial creation, is not subject to the statutory constraints — or, therefore, the stare decisis restraints which grew out of statute-related concerns — that I believe prevent this court from changing the rule of traditional joint and several liability under the Jones Act. In fact, as Judge Garwood points out, this court’s power to modify general maritime law is great; instead of asking whether we can modify the traditional rule of joint and several liability, therefore, the question with respect to Simeon’s general maritime claim is whether we should modify the traditional rule as Judge Garwood suggests. Judge Garwood argues in favor of modified joint liability because it is “a reasonable, fair, and just rule which logically flows from and accommodates the interplay of the principles of comparative fault and the responsibility of each party for all the proximate results of his own delicts.” There exists, however, no unequivocal measure of what is reasonable, fair, and just. Consequently, a statement that a rule of law is reasonable, fair, or just is simply a reflection that the rule advances a policy that the person judging the rule advocates. It is, therefore, to support a particular policy that Judge Garwood proposes today that we modify the traditional rule of joint and several liability under general maritime law; however, because I am unconvinced that the policy Judge Garwood advocates should be given priority over the policy the traditional rule presently advances, I reject the modification at this time.

The policy Judge Garwood advocates is that each party — including a contributorily negligent plaintiff and all joint tortfeasor defendants — should ultimately bear, to the extent possible, responsibility only for the proximate results of its own transgressions. I do not doubt that modified joint liability furthers that policy better than traditional joint and several liability does. As Charles 0. Gregory, who first proposed the modified system fifty years ago explained, modified joint liability distributes among the contributorily negligent plaintiff and each remaining defendant, in proportion to the fault the plaintiff and each defendant bear to each other, the risk that any joint tortfeasor will be insolvent— something traditional joint and several liability does not do. See C. Gregory, Legislative Loss Distribution in Negligence Actions 142 (1936). The policy Judge Garwood would advance through modified joint liability, however, is fundamentally at odds with a competing policy that the traditional rule of joint and several liability furthers — that of ensuring that injured plaintiffs are made whole. Traditional joint and several liability furthers this policy, as Justice Blackmun observed in Edmonds , by “protecting] plaintiffs from defendants who are unable to pay judgments entered against them.” 443 U.S. at 275 n. 2, 99 S.Ct. at 2764 n. 2 (Blackmun, J., dissenting). The purpose of modified joint liability, of course, is to remove that protection. Consequently, since both policies cannot be simultaneously accommodated, a choice between the policies must be made.

To date, under general maritime, the policy of the Supreme Court has been clear— ensure that injured plaintiffs are made whole, even at the expense of overburdening defendants. See Edmonds, 443 U.S. at 271 -72 n. 30, 99 S.Ct. at 2762 n. 30 (“[T]he general rule is that a person whose negligence is a substantial factor in the plaintiff’s indivisible injury is entirely liable even if other factors concurred in causing the injury.... Contribution remedies the unjust enrichment of the concurrent tort- *1455 feasor, and while it may sometimes limit the ultimate loss of the tortfeasor chosen by the plaintiff, it does not justify allocating more of the loss to the innocent employee, who was not unjustly enriched.”). Because the Supreme Court has never questioned the wisdom of the traditional rule of joint and several liability, nor retreated from the policy behind the rule, the choice of the courts of appeals has also been clear: They have refused to limit a contributorily negligent seaman’s recovery of damages under general maritime law to an amount less than an amount which will make the seaman whole — that is, the total amount of the judgment minus only that amount which represents the seaman’s contributory negligence. See, e.g., Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1545-48 (11th Cir.1987) (holding that “the philosophy governing Edmonds is clear: any inequity which results from the implementation of a seaman’s damage award should be borne by the tortfeasors rather than the seaman himself,” even where the seaman was contributorily negligent); Joia v. Jo-Ja Serv. Corp., 817 F.2d 908, 916-17 (1st Cir.1987) (rejecting proportionate liability under both the Jones Act and general maritime law because of the “inequity” which would result from decreasing a contributorily negligent seaman’s damages).

It actually comes as no surprise to me that both the Supreme Court and the circuit courts have aligned themselves with a policy of ensuring a seaman’s full recovery, regardless of the burden it places upon maritime defendants. That policy coincides with the general policy which has long guided the course of maritime law as it relates to the rights of seamen: “Seamen, of course, are wards of admiralty whose rights federal courts are duty-bound to jealously protect.” Bass v. Phoenix Seadrill/78 Ltd., 749 F.2d 1154, 1160-61 (5th Cir.1985); see, e.g., Vaughan v. Atkinson, 369 U.S. 527, 531-33 , 82 S.Ct. 997, 999-1001 , 8 L.Ed.2d 88 (1962); Garrett v. Moore-McCormack Co., 317 U.S. 239, 244-48 , 63 S.Ct. 246, 250-52 , 87 L.Ed. 239 (1942). Support for the traditional rule of joint and several liability comes from more, therefore, than just a tort policy of making plaintiffs whole; it comes also from a more general policy under maritime law of favoring and protecting seamen. While the traditional rule is, therefore, fully consonant with general maritime law, the rule of modified joint liability — supported, as it is, by a policy which eschews the protectionism that general maritime law embraces — is in conflict with the maritime law’s general philosophy concerning seamen’s rights. To choose the rule of modified joint liability over the rule of traditional joint and several liability, therefore, would be to choose to break from that general philosophy. While I do not dispute that this court has the power to so change the course of maritime law, I have to think that such a major change should not be undertaken without any indication that our historical concern for protecting seamen has become obsolete —and I am not alone in my opinion. Recently, the Eleventh Circuit declined the opportunity to make a similar change in the policy of general maritime law with a simple explanation:

[T]he general goal of maritime law is to provide quick and full compensation to the injured seaman, while leaving the primary litigation dispute to the question of which joint tortfeasor is liable for what percentage of the damage. Historically maritime law has treated seamen as in need of special protection; until the Supreme Court suggests otherwise, we cannot move away from that special protection to an arguably more “efficient” system in which an injured seaman is viewed as an equal party with equal bargaining power.

Self, 832 F.2d at 1548 . Judge Garwood’s dissent points me to no opinion other than his own which suggests that our policy of protecting seamen has lost its force. Therefore, I decline Judge Garwood’s call for this court to modify the general maritime law by replacing traditional joint and several liability, and the policies it reflects, with modified joint liability, and the policies it reflects.

Having explained why I cannot agree to modify the Jones Act and will not agree to *1456 modify general maritime law as Judge Garwood’s dissent suggests, I make one final point. As Judge Garwood concedes, none of the parties ever advanced the theory of modified joint liability Judge Garwood’s dissent proposes. We have a general rule in this circuit against addressing arguments that have not been raised either to us or to the district court. 4 Part of the justification for that rule is that, to borrow from Justice Blackmun, “the adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges,” to raise and address issues. New Jersey v. T.L.O., 468 U.S. 1214, 1216 , 104 S.Ct. 3583, 3585 , 82 L.Ed.2d 881 (1984) (dissenting from order directing reargument). Were I not otherwise convinced that we should not adopt modified joint liability at this time, therefore, I would still refrain from joining Judge Garwood’s entreaty. I could not sanction the adoption of an admittedly novel and assuredly complex theory which dramatically changes existing law when that theory has bypassed the adversary process altogether. Which means, as far as I am concerned, that this panel’s debate over Judge Garwood’s theory — a debate which first surfaced eight months after the case had been orally argued and which has occupied the members of this panel for six more months thereafter — has been purely an academic exercise. In a non-maritime case, such an unnecessary delay in resolving the parties’ dispute would be regrettable; in this maritime personal injury case, where a seaman is still waiting, seven years after his injury, for the compensation to which he is entitled, it is unacceptable. By saying this, I do not mean to impugn the motives of any member of this panel. Indeed, only judges with the best of motives would have expended the time and effort represented by the various opinions in this case. But what we have been engaged in here has greatly disserved the interests of the litigants in this case, and that is a result even the highest motives cannot justify.

. "The plaintiffs contributory negligence” means, as it is used throughout this opinion, the percentage that plaintiffs fault is of the total fault of all parties including himself. Judge Garwood does not dispute that under either traditional joint and several liability or the modified system he proposes, the cap on a plaintiff s recovery is measured by the total amount of the judgment the plaintiff obtains minus that amount which represents the plaintiff’s contributory negligence. Nor does Judge Garwood dispute that if all the defendants are solvent, the plaintiff should be permitted to recover damages equal to that amount.

. Algebraically, in a case involving two defendants, this can be expressed as follows:

Variables: x= percentage by which plaintiff was contributorily negligent;

yi= percentage by which defendant one was negligent;

y2= percentage by which defendant two was negligent.

Assumptions: (1) x + yx + y2 = 100%

(2) the amount of plaintiff's damages as found in the cause of action against yx is the same as the amount found in the cause of action against y2

Percentage of total judgment that plaintiff can recover from either defendant under traditional joint and several liability:

100-x

Percentage of total judgment that plaintiff can recover from defendants under modified joint and several liability:

[[Image here]]

. Judge Garwood discusses separately each of these same passages to explain why, in his view, they do not conflict with the modification he proposes. Judge Garwood’s basic reason is that in explaining how joint liability is imposed, the Supreme Court never explicitly said whose negligence a plaintiff's negligence is to be compared with. To the extent that Judge Garwood is arguing that the Supreme Court was not discussing traditional joint and several liability in these passages, I find the argument both surprising and unconvincing. It is beyond dispute that traditional joint and several liability compares the plaintiff’s negligence with all defendants’ negligence when determining the total damages each defendant is jointly responsible for — that is, in fact, Judge Garwood’s problem with the system of liability as it presently exists. It is beyond dispute that comparing the plaintiff’s negligence to that of all defendants is the rule of common law, and that the Supreme Court was repeating the common law rule in Edmonds . It is beyond dispute that as Edmonds reached the Supreme Court, Edmonds’ negligence had been compared to that of both, not each, of the defendants, and that liability had been divided accordingly. And finally, I think, it is beyond dispute that the Supreme Court approved that particular comparison in Edmonds . If the Supreme Court did not explicitly say that the proper comparison of a plaintiff’s negligence is with all of the defendants’ negligence, it is probably because it saw no need to, since no court had ever suggested — much less used — any other method of comparison.

I am similarly unconvinced by Judge Garwood’s additional attempts to bring the language of Edmonds into conformity with his proposal to modify the traditional rule of joint and several liability.

. Judge Garwood takes the position that the question is properly before the panel simply because we have found, upon Simeon’s urging, that the district court erroneously entered judgment severally against the defendants. Because the new theory Judge Garwood has suggested would affect the way judgment is entered on remand, Judge Garwood argues, we must decide now whether to accept or reject the theory. If Judge Garwood is right on this point, I do not see how he can admit that modified joint liability is inconsistent with the results of some already decided cases — including Edmonds — but conclude that because neither this circuit nor the Supreme Court has expressly rejected the theory, we should treat it as unconsidered by those courts. This inconsistency in reasoning aside, however, I cannot agree with Judge Garwood’s apparent assertion that any issue which could affect the judgment a district court is to enter on remand is ripe for review, regardless of whether it was ever mentioned by the parties.