¶1(concurring specialty)-
¶2I join the court’s opinion but add a comment. Including the two nonparties (Dr. McGrath and the hospital) on the verdict form for a determination and allocation of their fault was “of no practical consequence,” as the court’s opinion points out. As for “defendant” Laska, at the time of trial she was thought to be under the trial court’s ruling a properly served party, hence the ascertainment of her fault was submitted to the jury. Apparently Laska had no liability insurance of her own or assets. (While the record suggests Laska might have had coverage under the hospital’s policy, plaintiff did not plead she was employed by the hospital at the time of her alleged negligence). We are not privy to plaintiff’s strategy, but it would seem there was no practical need as this case was tried for Laska to have been a named party. Her negligence (whether or not a party) was included in her employer’s actual and vicarious negligence, which was covered by Milwaukee Auto’s policy. If this were the situation, the case might have been submitted simply as a lawsuit between plaintiff Schneider and defendant Buckman. Because there was no claim of contributory negligence against plaintiff, it could even have been submitted on a general verdict form.
¶3When a Pierringer release is involved, application of the comparative fault statute should include certain nonparties. Assume there are three tortfeasors and plaintiff settles with two of them on Pierringer releases. The two settling tortfeasors are nonparties, either because they settled before being sued, or, if they had been sued, they were dismissed from the lawsuit because of the Pierringer releases. In this situation the fault of the settling nonparties is submitted to the jury so that the shares of liability of the nonsettling parties can be determined. There can be other practical consequences too. See, e.g., Payne v. Bilco, 54 Wis.2d 424, 195 N.W.2d 641 (1972). The more fault the named defendant can shift to the absent tortfeasors, the less the named defendant has to pay. If plaintiff’s fault is also at issue, the apportionment of some fault to the nonparties may result in the named party’s fault being less than the plaintiff’s. Here, however, we do not have a Pierringer release. See footnote 4 of the court’s opinion.