Boyle, J.
The issue presented in this case is whether MCL 600.6304; MSA 27A.6304 permits the factfinder in a personal injury action to consider the fault of settling tortfeasors. A comparison of MCL 600.6304; MSA 27A.6304 to its legislative roots, the Uniform Comparative Fault Act and House Bill No. 5154, confirms the Court of Appeals conclusion that the statute does not allow for such factfinder consideration.
i
FACTS
This action for a declaratory judgment was com[63] menced by the mdot against the owners1 and driver2 of, and parents3 of two children who were passengers in, a pickup truck that collided with a truck driven by an mdot employee. The parents had filed an action in the Court of Claims against the mdot in January, 1989, which was consolidated with this action for a declaratory judgment some time after this action was commenced in October, 1989. The owners and driver settled with the parents without suit by paying insurance limits of $50,000 to one child and $4,000 to the other child.
The mdot seeks a declaration in this action determining the percentages of fault of the owners and driver "in causing the accident and any damages which may be awarded in the Court of Claims, and limiting the liability” of the mdot for damages to the parents in the Court of Claims action to that percentage authorized by § 6304.
The circuit court granted summary disposition, dismissing this action, and the Court of Appeals affirmed. The mdot argued that it, the nonsettling tortfeasor, is entitled under § 6304 to have the percentages of fault of the owners and driver, the settling tortfeasors, determined by the trier of fact, with the nonsettling tortfeasors’ liability limited to its "calculated percentage of fault.” The Court of Appeals ruled against the mdot, stating that § 6304 "does not require the trier of fact to ascertain the percentages of fault of joint tortfeasors who have settled with the injured party and are not parties to a lawsuit between the injured party and the remaining tortfeasor.”4
[64] The Court of Appeals focused on the language of § 6304, which it said "provides that in a personal injury action 'involving fault of more than 1 party to the action,’ the trier of fact shall determine the 'percentage of the total fault of all the parties regarding each claim as to each plaintiff, defendant, and third-party defendant.’ ”5
The Court of Appeals reasoned that the "plain language” of § 6304 "refers to 'parties’ to the action,”6 that the owners and driver were not parties to this action, and concluded that the circuit court was not required to determine their percentages of fault. The Court of Appeals observed that an earlier version of the 1986 tort reform act provided that "a percentage of the total fault would be made not only among parties to the action, but also among persons who had been released from liability,” but that language was deleted from the final version of the act. The Court of Appeals said that this change in the bill was "persuasive evidence that the Legislature did not intend the result argued by the mdot.”7
ii
THE UNIFORM COMPARATIVE FAULT ACT
On August 5, 1977, the National Conference on Uniform State Laws adopted the Uniform Comparative Fault Act (ucfa). The ucfa attempted to comprehensively resolve a number of major issues relating to comparative fault, including how it is defined, its use in apportioning damages, the role of contribution, and how a prior release affects all of the above. Because our Legislature’s effort at [65] tort reform, § 6304, is loosely based on a blend of § 2 and § 5 of the ucfa, with a dash of governmental immunity thrown in for good measure, a discussion of the uniform statute’s workings provides insight into the workings of the Michigan statute.
Section 1 of the ucfa "states the general principle, that a plaintiff’s contributory fault does not bar his recovery, but instead apportions damages according to the proportionate fault of the parties.” (Section 1, comment.) In a nutshell, § 1 establishes a pure comparative fault system, eliminating the older concept of contributory negligence as a bar to recovery.
Section 2 is the most important portion of the ucfa for our purposes, because it served as a template for the Michigan statute. Section 2 (apportionment of damages) provides:
(a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under Section 6, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating:
(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
(2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under Section 6. For this purpose the court may determine that two or more persons are to be treated as a single party.
(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
[66] (c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to any reduction under Section 6, and enter judgment against each party liable on the basis of rules of joint-and-several liability. For purposes of contribution under Sections 4 and 5, the court also shall determine and state in the judgment each party’s equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
(d) Upon motion made not later than [one year] after judgment is entered, the court shall determine whether all or part of a party’s equitable share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. The party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.
Subsections (a) and (b) explain the role of the trier of fact in apportioning damages. Under (a), the factfinder shall decide (1) the amount of damages the claimant8 would be entitled to if contributory fault is not considered, and (2) the percentage of total fault of all of the parties to each claim. Subsection (b) explains that when determining the percentages of fault, the factfinder shall consider both the conduct of the parties at fault and the causal relation between the conduct and damages claimed. Both (a) and (b) note that the fault of "person[s] who [have] been released under Section 6” is to be considered when the factfinder makes its findings.
The comments on UCFA § 2 help explain how (a) [67] and (b) work. First, the "limitation to parties to the action means ignoring other persons who may have been at fault with regard to the particular injury but who have not been joined as parties.” At first this limitation seems to run contrary to the express language of (a) regarding persons who have been released under § 6. However, although not entirely clear from the comment, the statute seems either to define the released persons as parties9 or contemplates that they were at one time parties to the action. Under either interpretation, the hypothetical example makes it clear that released tortfeasors are considered by the fact-finder and their fault is established. The limitation on parties is intended to force both plaintiffs and defendants to join anyone who may be liable, so that the judgment later rendered by the court is as complete as possible.
The comments on § 2(a) and (b) also explain that the "total of the several percentages of fault for the plaintiff and all defendants, as found in the special interrogatories, should add up to 100%.”
Although out of order, it is appropriate here to focus on § 6 to the ucfa, because it. figures so prominently in both the determination of fault and the concepts of reallocation. Section 6 (effect of release) states:
A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the [68] amount of the released person’s equitable share of the obligation, determined in accordance with the provisions of Section 2.
Section 6 discharges a released person from all contribution and then reduces the releasing person’s claim against the remaining defendants by the released person’s equitable share. By contrast, Michigan’s release statute, MCL 600.2925d; MSA 27A.2925(4) reduces a plaintiff’s damages claim by the monetary amount of settlement:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide.
Ob) It reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.
(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
This difference is significant. Under the ucfa, the plaintiff absorbs the losses from a settlement that is lower than the released party’s percentage of fault. Under § 2925d, the remaining defendants absorb the cost. A hypothetical .example in the comment on § 6 helps to illustrate the difference:
A was injured through the concurrent negligence of B, c and d. His damages are $20,000. A settles with b for $2,000.
The trial produces the following results:
[69] A, 40% at fault (equitable share, $8,000).
B, 30% at fault (equitable share, $6,000).
C, 20% at fault (equitable share, $4,000).
D, 10% at fault (equitable share, $2,000).
A’s claim is reduced by b’s equitable share ($6,000).
A absorbs the difference between b’s equitable share and the settlement, in the hypothetical example, $4,000. By comparison, under § 2925d, only $2,000 would be subtracted from a’s total damages, increasing the total damages owed by the other defendants by their proportion of fault. The full effect of this difference will also be addressed later in the opinion. For present purposes, the important point is that under the ucfa, the percentage of fault of settling defendants is determined by the factfinder.
UCFA § 2(c) directs the court to determine the award of damages to each claimant, subject to any reduction under § 6, which reduces the plaintiff’s damages by the equitable share of any released party. The judge enters judgment against each party liable on the basis of rules of joint and several liability. The judge then determines and states in the judgment, for purposes of contribution under §§ 4 and 5, each party’s equitable share of the obligation to the plaintiff in accordance with their respective percentages of fault. While a judgment of joint and several liability would not be entered against settling defendants who are released under § 6, it appears from the hypothetical example in that section, that the percentage of fault of those defendants is also stated in the judgment.
Section 2(c) represents one of the major policy [70] choices made by the drafters of the ucfa. While the plaintiff’s equitable share and any released parties’ equitable shares (which are imputed to the plaintiff) are subtracted from the total amount of damages, the plaintiff is free to pursue any liable defendant for the entire remaining amount as determined under subsection (a)(1). While at first glance the use of joint and several liability in a comparative fault statute seems counterintuitive, the contribution rules found in §§ 4 and 5, and the reallocation provisions found in subsection 2(d), substantially limit the recovery of a plaintiff at fault or who has assumed an equitable share of fault through settlement. The use of joint and several liability appears to serve at least two obvious purposes under the ucfa: (1) wholly innocent plaintiffs receive full compensation, and (2) plaintiffs at fault receive the majority of their money, although they remain subject to the risks of reallocation and certain forms of contribution.
The effect on defendants of the ucfa’s use of joint and several liability is tempered by subsection 2(d), which provides that "[u]pon a motion made not later than one year after judgment,” the court shall determine if part or all of a party’s equitable share of the judgment is uncollectible. If it is, the court shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. The party whose share is reallocated still remains subject to contribution.
Under the ucfa, "[rjeallocation takes place among all parties at fault. This includes a claimant who is contributorily at fault. It avoids the unfairness both of the common-law rule of joint and several liability, which would cast the total risk of uncollectibility on the solvent defendants, and a rule abolishing joint and several liability, [71] which would cast the total rule of uncollectibility on the claimant,” comment on § 2.10 Sections 411 and 5 delineate the right to, and enforceability of, contribution under the ucfa. These provisions, along with the right to reallocation, are intended to modify the traditional effect of joint and several liability.
Section 4 (right of contribution) provides:
[72] (a) A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution is each person’s equitable share of the obligation, including the equitable share of a claimant at fault, as determined in accordance with the provisions of Section 2.
(b) Contribution is available to a person who enters into a settlement with a claimant only (1) if the liability of the person against whom contribution is sought has been extinguished and (2) to the extent that the amount paid in settlement was reasonable.
Section 4(a) allows the right to contribution to be exercised whether or not a judgment has been recovered against any or all of the parties. Importantly, the right may be enforced in the original action, using as a basis the equitable shares as determined by the factfinder and judge under § 2 of the ucfa.
Section 4(b) even allows a party who has settled with the plaintiff to offset his losses by seeking contribution if the liability to the plaintiff of the person against the contribution is sought has been extinguished12 and to the extent the amount paid in settlement was reasonable.
The short comment on § 4 recognizes that §§ 4, 5 and 6 of the ucfa are meant to replace the Uniform Contribution Among Tortfeasors Act (1955), the primary difference in § 4 being the use of proportionate fault rather than pro-rata shares as the basis of contribution._
[73] Section 5 (enforcement of contribution) provides:
(a) If the proportionate fault of the parties to a claim for contribution has been established previously by the court, as provided by Section 2, a party paying more than his equitable share of the obligation, upon motion, may recover judgment for contribution.
(b) If the proportionate fault of the parties to the claim for contribution has not been established by the court, contribution may be enforced in a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is being sought.
(c) If a judgment has been rendered, the action for contribution must be commenced within [one year] after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant’s right of action against him and commenced the action for contribution within [one year] after payment, or (2) agreed while action was pending to discharge the common liability and, within [one year] after the agreement, have paid the liability and commenced an action for contribution.
Thus, § 5, like § 4, relies on the judgment of proportionate fault made pursuant to § 2 to effectuate contribution. Accordingly, § 5(a) allows a party to recover on motion against parties whose equitable shares have been established. This feature of the ucfa, like reallocation, appears to promote efficiency by encouraging parties at the outset to include in the action any person or entity who may be liable, so that the entire action can be handled in the same action. Under the ucfa, the plaintiff can sue and pick the defendant he wishes [74] to collect from, that defendant can force contribution, and then reallocation when someone cannot pay, all before any money changes hands. Even in the case of a wholly innocent plaintiff, who is not subject to reallocation or contribution, the ucfa allows the defendants to settle matters without delay.
Section 5(b) permits contribution to be enforced in a separate action and § 5(c) sets limits on when contribution may be commenced.13
There remain two parts of the comment on § 6, earlier discussed, that relate to contribution and merit discussion. First, the comment displays another policy choice made by the drafters of the ucfa:_
[75] The question of the contribution rights of tortfeasors a and b against tortfeasor c, who settled and obtained a release or covenant not to sue admits of three answers: (1) a and b are still able to obtain contribution against c, despite the release, (2) A and B are not entitled to contribution unless release was given not in good faith but by way of collusion, and (3) the plaintiff’s total claim is reduced by the proportionate share of c. Each of the three solutions has substantial disadvantages, yet each has been adopted in one of the uniform acts. The first solution was adopted by the 1939 Uniform Contribution Act. Its disadvantage is that it discourages settlements; a tortfeasor has no incentive to settle if he remains liable for contribution. The second solution was adopted by the 1955 Contribution Act. While it theoretically encourages settlements, it may be unfair to the other defendants and if the good-faith requirement is conscientiously enforced settlements may be discouraged.
The third solution is adopted in this Section. Although it may have some tendency to discourage a claimant from entering into a settlement, this solution is fairly based on the proportionate-fault principle.
The alternatives do not mention the position adopted in Michigan, namely, that the plaintiff’s total claim is reduced by the amount of money paid. MCL 600.2925d(b); MSA 27A.2925(4)(b). The obvious reason for this omission, is that § 2925d does not contemplate a comparative fault system. More will be said on this subject in discussing Michigan’s attempt at tort reform.
Another comment on § 6 relevant to contribution serves as a reminder that a plaintiff who settles absorbs the entire equitable share of the individual released:
A reallocated share of contribution, as provided in Section 2(d), comes within the meaning of this [76] phrase, and the discharge of the released person under this Section applies to that liability as well. Since the claim is reduced by the amount of the released person’s equitable share, the increased amount of that share as a result of the reallocation is charged against the releasing person.
Ill
HOUSE BILL NO. 5154
The version of § 6304 found in House Bill No. 5154 is based, in large part on the language of § 2 of the ucfa. However, in the process of evolution toward the form of the act as eventually adopted, changes began to emerge that indicate that the Michigan Legislature was making different policy choices than the drafters of the ucfa.
HB 5154 provided:
Sec. 6304. (1) In a personal injury action involving fault of more than 1 party to the action, including third-party defendants and persons who have been released from liability pursuant to section 2925d, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no ' jury, shall make findings indicating both of the following:
(a) The total amount of each claimant’s damages.
(b) The percentage of the total fault of all of the parties regarding each claim as to each claimant, defendant, and third-party defendant and person who has been released from liability pursuant to section 2925d.
(2) In determining the percentages of fault under subsection (l)(b), the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
[77] (3) The court shall determine the award of damages to each claimant in accordance with the findings under subsection (1), subject to any reduction under section 2925d(b) or 6303, and enter judgment against each party except that judgment shall not be entered against a person who has been released from liability pursuant to section 2925d. Except as provided in subsection (4), a person shall not be required to pay damages in an amount greater than his or her relative degree of fault.
(4) Upon motion made not later than 1 year after judgment is entered, the court shall determine whether all or part of a party’s equitable share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, but not including a person who has been released from liability pursuant to section 2925d, according to their respective percentages of fault as determined under subsection (1). A party shall not be required to pay a percentage of any uncollectible amount which exceeds that party’s percentage of fault as determined under subsection (1). The party whose liability is reallocated continues to be subject to contribution and to any continuing liability to the claimant on the judgment.
The only substantive difference between parts (1) and (2) of the HB 5154 version of § 6304 and parts (a) and (b) of UCFA § 2 is the language relating to released parties. House Bill 5154 called for the factfinder to consider parties released pursuant to § 2925d, and the ucfa called for consideration of those released pursuant to § 6. To fully understand what this difference means, it is necessary to review the state of the law at the time HB 5154 was proposed.
In Mayhew v Berrien Co Rd Comm, 414 Mich 399; 326 NW2d 366 (1982), this Court considered [78] facts and arguments similar to those presented today. In that case, the defendant road commission argued that this Court’s adoption of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), and the Legislature’s adoption of the same concept for products liability in MCL 600.2949; MSA 27A.2949 implicitly modified the statutory method for setting off a settlement amendment. The defendant argued that "comparative fault must apply to all tortfeasors, including settling tortfeasors, which means that plaintiff’s total damage recovery must be reduced by the settler’s proportionate share of fault rather than the value of the settlement.” Id. at 405. We rejected the defendant’s arguments on both statutory and public policy grounds.
The unanimous Court in Mayhew, supra at 405, began by noting that, while the defendants’ "argument is not without logic,” it must fall to legislative intent; "when the Legislature, by 1982 PA 147, amended § 2925b and did not amend § 2925d of the contribution between joint tortfeasors section of the Revised Judicature Act, the Legislature gave this Court a strong signal that it intended § 2925d to remain viable rather than be superseded by inference by Placek or the products liability comparative negligence statute.” Mayhew, supra at 410. Section 2925d defined, both at the time of Mayhew and HB 5154,14 the effect of a release or covenant not to sue. It provides:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide.
[79] (b) It reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.
(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
We concluded that the statute provides "that the total share of damage liability of non-settling tortfeasors should be the entire amount of damages minus the value of the settlement rather than minus the proportionate share of fault of the settling tortfeasor” interpretation, finding this construction "consistent with the ever-important policies of (1) encouraging settlements and (2) assuring that a plaintiff is fully compensated for the injuries sustained.” Id. at 407, 411-412.15
Mayhew was the state of the law at the time HB 5154 was proposed. Under subsection (1) of that bill, the Mayhew prohibition against consideration by the factfinder of the fault of settling tortfeasors was eliminated. However, as subsection (3) illustrates, § 2925d survived untouched, apparently [80] with the Mayhew interpretation of that section likewise intact.
Subsection (3) represents another dramatic shift from the ucfa, although again much of the language is similar. Under subsection (3), after the factfinder determines the degree of fault of all tortfeasors under subsection (1), the judge is to determine the award of damages to each plaintiff, subject to any reductions under § 2925d and MCL 600.6303; MSA 27A.6303.16 This language is nearly identical to that found in UCFA § 2(c). However, at the point at which the ucfa imposes judgment on the basis of joint and several liability, and directs the judge to state in the judgment the fault of all of the parties for contribution purposes, subsection (3) takes a different tack and directs that, except as provided in the following subsection (4), a person shall not be required to pay damages in an amount greater than the relative degree of fault. Subsection (3) also announces that a judgment shall not be entered against anyone released under § 2925d.
The effect of subsection (3) is to almost entirely eliminate joint and several liability, replacing it with a slightly diluted form of comparative fault. Whereas the ucfa used contribution and reallocation to ameliorate the harsh effects of joint and several liability, HB 5154, although it still uses reallocation under subsection (4), shifts most of the risks of obtaining a judgment onto the plaintiff, thereby avoiding joint and several liability.17
While a complete interpretation of HB 5154 is [81] unnecessary for present purposes, some conclusions can be drawn. Taken as a whole, HB 5154 would have rewritten much of Michigan’s personal injury damages law.
The bill would have explicitly done away with the portion of the Mayhew holding that prevented a jury from considering the fault of settling tortfeasors.
Although not as clear, it also appears that the House bill provided nonsettling tortfeasors with a double setoff. Section 2925d is still utilized in the House bill, and subsection (3) allows the settlement figure to reduce the total damages as calculated under subsection (1). In this respect, the bill appears to contemplate a joint and several system along the lines of Mayhew. However, the bill goes on to limit the amount a party must pay to its relative degree of fault. This limitation is sensible in a system like the ucfa, which does not set off the settling parties’ percentage of fault. The monetary value of the settlement is not considered. However, by reducing the total damages for settlement money received pursuant to § 2925d, and by limiting a nonsettling tortfeasor’s liability to his percentage of fault relative to all tortfeasors including those that have settled, the House bill seems to attribute both the money and the fault of the settling tortfeasors to the plaintiff. If this is the correct interpretation of what the bill intended, HB 5154 would discourage settlement, not promote it.
Finally, HB 5154 would have eliminated joint and several liability in all cases, regardless of the negligence of the plaintiff, and replaced it with a system in which the plaintiff assumed the entire risk of nonpayment, tempered only by the possibility of reallocation.
[82] IV
MCL 600.6304; MSA 27A.6304
The version of § 6304 before us in the present case still contains much of the language originally found in the ucfa. It also includes many of the modifications found in HB 5154. However, the statute as adopted incorporates several policy decisions that distinguish it from its predecessors.
At the time of adoption, § 6304 provided:
(1) In a personal injury action involving fault of more than 1 party to the action, including third-party defendants, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all of the parties regarding each claim as to each plaintiff, defendant, and third-party defendant.
(2) In determining the percentages of fault under subsection (l)(b), the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
(6) Except as otherwise provided in this subsection and subsection (7), upon motion made not later than 6 months after a final judgment is entered, the court shall determine whether all or part of a party’s share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties according to their respective percentages of fault as determined under subsection (1). A party shall not be required to pay a percentage of any uncollectible amount which exceeds that party’s percentage of fault as determined under subsection (1). The [83] party whose liability is reallocated shall continue to be subject to contribution and to any continuing liability to the plaintiff on the judgment.
(7) Notwithstanding subsection (3), a governmental agency, other than a governmental hospital or medical care facility, shall not be required to pay a percentage of any uncollectible amount which exceeds the governmental agency’s percentage of fault as determined under subsection (1).
Subsections (1) and (2) of § 6304 are almost identical to the ucfa and HB 5154, with one very important omission: they do not include a reference to released parties. Whereas UCFA § 2(a)(2) referred to "the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under Section 6” and HB 5154 § 6304(l)(b) referred to "the total fault of all of the parties regarding each claim as to each claimant, defendant, and third-party defendant and person who has been released from liability pursuant to Section 2925d,” § 6304 as enacted only refers to "the total fault of all of the parties regarding each claim as to each plaintiff, defendant, and third-party defendant.” (Emphasis added.) While this omission implies that the Legislature did not intend the fault of settling tortfeasors to be considered, the mdot argues that there are other subsections of § 6304 that suggest the opposite intent. These arguments will be addressed as they appear in the statute.
Subsection (3) has no counterpart in either the ucfa or HB 5154. It provides:
If it is determined under subsections (1) and (2) that a plaintiff is not at fault, subsections (5) and (6) shall not apply.
This subsection represents an apparent policy [84] choice on the part of the Legislature to protect plaintiffs who are wholly without fault. Under the "pure” form of comparative fault contemplated by HB 5154, even an entirely innocent plaintiff, a plaintiff who was in no way negligent, had to bear the risk of nonrecovery. This was in stark contrast to the ucfa, in which joint and several liability imposed that risk on defendants. As adopted, subsection (3) of § 630418 protects the innocent plaintiff through the use of joint and several liability, at least with regard to nongovernmental defendants.
Subsection (3) is important for another reason. It confirms that § 2925d still means what Mayhew said it meant, "the total share of damage liability of non-settling tortfeasors should be the entire amount of damages minus the value of the settlement . . . .” Id. at 407. Because subsection (3) contemplates joint and several liability, the traditional § 2925d setoff is operative. While it could still be argued that § 2925d has been impliedly changed by the tort reform legislation to contemplate proportional fault, the complete lack of any language countering this Court’s rejection of this argument in the joint and several setting, makes the argument that § 2925 has been changed by implication unpersuasive.
Subsection (5) is the foundation for the government’s argument that the fault of settling parties is to be considered by the factfinder.
The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (1), subject to any reduction under sections 2925d and 6303, and enter judgment against each party, including a third-party defen[85] dant, except that judgment shall not be entered against a person who has been released from liability pursuant to section 2925d. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault.
The section is identical in language to subsection (3) in HB 5154 in all but one respect.19 It applies only when the plaintiff is at fault, and contains some language that seems to imply that more than just nonsettling tortfeasors are considered by the factfinder. The mdot contends that the phrase "except that judgment shall not be entered against a person who has been released from liability pursuant to section 2925d,” indicates a legislative intent that the factfinder is to consider released parties in the calculation of fault.
The context in which § 6304 was adopted must be remembered. Mayhew was the governing law, and its interpretation of comparative fault precluded factfinder consideration of the fault of settling tortfeasors. Our decision was based on both § 2925d, which was not, and has not, been amended, and the public "policies of (1) encouraging settlements and (2) assuring that a plaintiff is fully compensated for injuries sustained.” Id. at 411-412. The language of HB 5154 explicitly allowed the factfinder to consider the fault of released parties and would have undone that portion of Mayhew that did not allow for such consideration. However, § 6304 as adopted, does not. In light of the case law and legislative history, it is too great a stretch to conclude that the ambiguous language in subsection (5) was intended to accom[86] plish all that the specific, but eliminated, language found in the House bill would have accomplished.20
As a whole, § 6304 as enacted appears to be an attempt to take a less drastic approach to tort reform than was proposed in HB 5154.21 When a plaintiff is not at fault, the risk of nonrecovery falls on the defendant, and the plaintiff recovers under joint and several liability. When the plaintiff is at fault, the fault of the nonsettling defendants is apportioned among all the parties to the action, who pay according to that fault. This interpretation is consistent with this Court’s interpretation in Mayhew of § 2925d. The total judgment is reduced only by the settlement amount and the [87] problem of double setoff seemingly suggested in HB 5154 is avoided.22
v
CONCLUSION
The Court of Appeals affirmance of the trial court’s ruling of no actual controversy arguably should have precluded it from reaching the substantive merits. However, because the trial court had jurisdiction to decide the merits, see Allstate Ins Co v Hayes, 422 Mich 56; 499 NW2d 743 (1993), the efforts and energy of the parties and this Court weigh in favor of the efficiency of deciding the issue in the instant action. The mdot is not entitled to have the factfinder determine the fault of settling tortfeasors.23 The Court of Appeals is affirmed.
Riley, Griffin, and Mallett, JJ., concurred with Boyle, J.