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client should be assigned among the remaining solvent, culpable tortfeasors and the negligent plaintiff. One view is that the tortfeasors should absorb the entire amount under joint and several principles, the other is that "unmet responsibilities should be reallocated among all parties at fault, including a negligent plaintiff, in accordance with the established percentages of fault." Wade, supra note 158, at 211. Under several liability, of course, the plaintiff, negligent or not, absorbs the entire loss of insolvent defendants.

(n163) In McLean v. Alexander, 599 F.2d 1190 (3d Cir. 1979), a federal district court's application of relative fault principles to a case in which an auditor was one of several defendants was overruled on appeal. The appellate court found there was no common law fraud on the part of the auditor and, therefore, under Ultramares, there was no liability. In a more recent Texas ease, a comparative fault verdict was rendered against several defendants including a negligent auditor. The jury found $20 million in compensatory damages and assessed $530 million in punitives, including $200 million against the auditor. See Harlan, supra note 25. The parties settled for an undisclosed amount several days after the verdict was rendered. See Andrew Pollock, Big Defendants Settle in MiniScribe Lawsuit, N.Y. TIMES, Feb. 19, 1992, at D4. For another perspective on this ease, see infra note 330 and accompanying text.

There are a few auditor malpractice eases in which the auditor's negligence has been compared with that of the plaintiff client. See, e.g., Deveo Premium Finance Co. v. North River Ins. Co., 450 So. 2d 1216 (Fla. Dist. Ct. App. 1984) (client 80% at fault; auditor 20%); Capital Mortgage Corp. v. Coopers & Lybrand, 369 N.W.2d 922 (Mich. Ct. App. 1985) (client 68.3% at fault; auditor 31.7%); Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905 (Minn. 1990) (client 80% at fault; auditor 20%).

(n164) See infra notes 165-96 and accompanying text.

(n165) 208 N.Y.S. 259, 268-69 (1925), aff'd 152 N.E. 431 (N.Y. 1926) (mem.).

(n166) The majority cites cases and other authorities that meld issues of contributory negligence and proximate cause. Arguably, the criminality of the defaulting employee can be said to be a superseding cause of the plaintiff's loss. 208 N.Y.S. at 268. And if the gravamen of the action is deemed to sound in contract despite its trappings of tort, "the defaulting party [in this case the auditor] is liable only for the direct consequence of the breach ...." Id. at 268 (citing City of East Grand Forks v. Steele, 141 N.W. 181, 182 (45 L.R.A. [N.S.] 205).

(n167) See David L. Menzel, The Defense of Contributory Negligence in Accountant's Malpractice Actions, 13 SETON HALL L. REV. 292, 295-99 (1983) (discussing contemporaneous critiques of the Craig majority opinion on both doctrinal and policy grounds).

(n168) "They were the very thing the contract was made to detect and prevent." Comment, The Legal Responsibility of Public Accountants, 35 YALE L.J. 76, 83 (1925).

(n169) 208 N.Y.S. at 269-70.

(n170) See Shapiro v. Glekel, 380 F. Supp. 1053 (S.D.N.Y. 197A] (New York law)i


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