How has the court considered a third party's negligence in calculating reimbursement in a medical malpractice case?

In Kemerer v. Challenge Milk Co. (1980) 105 Cal.App.3d 334, 164 Cal.Rptr. 397, the reviewing court again refused to impute the negligence [36 Cal.3d 357] attributable to the employee to the employer in calculating the latter's reimbursement entitlement. In the lower court verdict the jury found both the employee and the third party defendant partially negligent and the employer free of fault. The third party defendant attempted to reduce the amount of reimbursement due the employer by the 30 percent negligence of the employee. The appellate court refused to adopt the formula suggested by the third party finding such a calculation would allow the damages assessed the third party to be reduced twice, once from the original assignment of damages and again in calculating the reimbursement. (105 Cal.App.3d at p. 338, 164 Cal.Rptr. 397.) As in Kramer, the question of computing reimbursement did not affect the amount of recovery to be realized by the employee. The court was faced with a conflict between the interests of the employer and a third party, a relationship governed by the principles of comparative negligence. Had it accepted the lower court's determination, the liability of a negligent third party would have been reduced twice to the detriment of an otherwise nonnegligent employer.