As all law students learn, the ultimate decision to plunge into damage apportionment arose out of an even greater dissatisfaction with one of the principal all-or-nothing schemes to limit liability, the defense of contributory negligence.(n152) Ameliorating doctrines such as last-clear-chance coupled with juries' frequent refusal to find negligence on the part of plaintiffs proved to be no panacea for the defense's harshness.(n153) As a result, comparative negligence in the context of jury trials(n154) was introduced and proved highly successful in the sense that the apportioning of damages has met with wide acceptance.(n155)
Comparative negligence rules in the cases involving a single plaintiff and a single defendant posed few additional difficulties for courts and legislatures. The most significant new issue was whether a plaintiff more at fault than the defendant in causing the plaintiff's injuries should recover anything at all.(n156) But in those cases involving multiple defendants, great complexity was added that had to be parsed by new rules.(n157)
Fortunately, in considering apportionment in the accounting context a good deal of commentary is available that focuses on general questions of contribution, indemnity, and joint and several liability issues.(n158) Unfortunately, there is little agreement on how these principles should be applied.
In the auditing context, a typical scenario involves a creditor of an enterprise who is unable to enforce the debt obligations due him because of the debtor's insolvency. When a demand for payment or a lawsuit by the creditor sounding in contract fails to produce a collectible judgment, the plaintiff institutes a separate tort suit for negligent misrepresentation against the enterprise's auditor.(n159) Other potential joint defendants such as officers, directors, attorneys, appraisers, and brokers may be sued as well. If such an action is permissible under the kind of rule established in H. Rosenblum v. Adler,(n160) the question arises whether the auditor can join its client, its client's tortious or criminal directors, officers, and other employees, and other culpable parties as third party defendants.(n161) The substantive ground for joining these parties would be that there is a single indivisible injury to the third party (its pecuniary loss) and that injury was proximately caused by erroneous financial information represented to the third party by both the auditor and the culpable defendants. The purpose of joinder would be to receive a judgment that would apportion damages to the third party from among all the culpable defendants, presumably one that would assess the auditor's fault at something less than 100 percent of the plaintiff's loss.
If the auditor succeeds in bringing in all potentially culpable defendants, there remains one major question: if the client and perhaps other culpable defendants are insolvent -- as will often be the case --must the auditor pay all or a portion of the judgment rendered against the insolvent parties? If the auditor is to be held jointly and severally liable for all the harm to the third party, the joinder exercise will be futile, and -- if the plaintiff is non-negligent --comparative fault principles will be of no use as a liability limiting device.(n162)
Because successful third party common law negligence suits against auditors are quite recent developments, we could find no decided appellate cases in which there had been apportionment of damages among multiple tortfeasors including an auditor.(n163) In addition, for reasons that will soon become apparent, there are only a few cases in which contributory negligence or comparative fault have been successfully raised as a defense by accountants.(n164) Of necessity,