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Craig v. Anyon,(n189) despite the fact that Nebraska had adopted comparative fault, making it likely that at least some liability would be imposed on the negligent auditors.

In Devco Premium Finance Company v. North River Insurance Company,(n190) a Florida appeals court rejected the conclusion reached in Lincoln Grain, pointing out that the National Surety case, upon which the Lincoln Grain court had relied, had been "decided on the principles of contributory negligence, a doctrine which has been repudiated in [Florida]."(n191) The court affirmed a judgment apportioning twenty percent of the fault to the auditor for negligently conducting its audit and eighty percent to the client for negligently failing to follow up promptly the creditworthiness of its customers.(n192)

Both of these cases involve a single defendant -- an accountant sued by its client -- but they illustrate the threshold issue that must be overcome before comparative fault can be employed as a limiting principle in suits brought by third parties. The auditor must be permitted to assert the fault of others as a partial defense. The Lincoln Grain rule would appear to preclude such a defense, except when the auditor is prevented by the client, or a third party, from performing its contract and reporting the truth.

If the rule in Devco Premium (and not Lincoln Grain) were to apply, an auditor could assert by way of defense the negligence of its co-defendants, third party defendants, and third party plaintiffs. But it can be argued that finding a formula for apportioning damages among the culpable parties is a particularly difficult matter in auditing cases. Apportionment in personal injury cases can reasonably be sought from juries composed of ordinary persons because most of us are familiar with the instrumentalities that cause these injuries and many of the circumstances under which they are used. Common sense evaluations of relative culpability in these cases are possible. In auditing cases, however, neither juries, nor judges acting as fact finders, are likely to be familiar with the technical principles and standards applied by the auditors, the inherent limitations in applying them, or the alternatives that might have been applied -- and their limitations.

This unfamiliarity of fact finders with the technical background of the cases they have to decide is a common problem in complex litigation. It is a problem beyond the scope of this article, but the authors are reasonably confident that seasoned advocates should in time be able to reduce the issues in the auditors' cases to the point where juries or judges will be able to make apportionment decisions on some reasonable basis.

We assume that in applying comparative fault principles, the trier of fact will seek to apportion damages on the basis of culpability rather than causation. Once multiple causes have joined to produce an indivisible injury, it is not simple to develop a principled method for assigning causal portions to all antecedent actors. The desirability of attempting to do just that was given impetus in the late seventies and early eighties in order to apportion damages in strict liability cases in which fault was to play no part.(n193) In the auditor cases, however, it is generally agreed that the rules of negligence and intentional torts (deceit) apply, and so we need not comment on whether and how causation can be apportioned except to note that the magnitude of each actor's contribution to the injury is a factor the trier of fact should be asked to weigh along with the quality of the actors' conduct. That quality assessment would include the foreseeability and


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