The final three stages identified by Wade follow the emergence of comparative negligence. He points out that the "principles of comparative negligence and contribution among joint tortfeasors have a mutual affinity."(n217) Comparative negligence, he notes, violates two sacredly held common law policies: "(1) a wrongdoer is not entitled to seek relief from the court, and (2) the choice must be confined to recovery of either all or nothing."(n218) Experience has shown that neither policy was an indispensable element of American tort jurisprudence.
The penultimate stage of development, Wade calls comparative contribution, or equitable indemnity.(n219) Under this principle, damages for indivisible injuries are in fact divided according to culpability percentage determinations (rather than pro rata) among all parties to the action. The final stage of development, identified with the modern tort reform movement, seeks a "several or separate" liability rules.(n220)
Dean Wade balks at the consequences of a pure proportionate several liability rule. That the entire burden of an insolvent defendant should fall on an innocent, or even negligent injured party he finds "not even debatable."(n221) His suggestion is to divide the insolvent tortfeasor's share among all responsible parties in proportion to their fault.(n222) Of course, in a case where an auditor is sued by a fault-free creditor and is found twenty percent at fault, and the insolvent client is found eighty percent at fault, Wade's "fairer" scheme would assess the auditor for 100% of the creditor's damages.
In considering the fairness of applying the joint and several rule to accountants, there are two distinguishing aspects of these cases that seem relevant. First, it is arguable that the scope of liability should somehow be tied to the defendant's stake in the enterprise. A product manufacturer held jointly and severally liable has had the opportunity to glean unlimited profit from the enterprise. An accountant's compensation, however, is limited to a fee for time spent by the accountant on the audit engagement. To hold equivalent the upper limit of both parties' liability exposure (which is the result of a joint and several rule) seems disproportionate. The equity of this argument gains support from those new comparative fault statutes that apply joint and several liability only when the fact finder finds a statutory minimum percentage of fault on the part of a defendant who is neither immune nor insolvent.(n223) Presumably, juries would find the auditor's percentage of fault low in relation to that of an insolvent negligent or fraudulent client so that in those jurisdictions, either a de facto several rule or reduced joint liability would be expected to apply to the auditor's negligence.
A second characteristic of these cases is their purely pecuniary nature. The urgency of the policies protecting victims of personal injury and property damage is less intense when only financial loss is involved. The persistence of a privity rule in accountant cases after its abrogation many years ago in personal injury cases supports this proposition.(n224) Moreover, the typical third party victims of negligent misrepresentation are generally on notice that their loans, deposits, or investments are subject to numerous risks including those flowing from a world of imperfect information. While they should not be remediless if they rely to their detriment on misleading financial information, it is hard to argue that their remedies should extend beyond the culpability of solvent tortieasors. The creditor, guarantor, or investor has available several ways to protect himself ex ante against the later possibility of an insolvent tortfeasor. Besides the mechanisms of independent audit and possibly insurance,(n225) the plaintiff in these cases is