Page:Copeland By and Through Copeland v. Toyota Motor Sales U.S.A., Inc.pdf/13

 Id. § 60-258a(b). When the fact finder determines a plaintiff is contributorily negligent, the statute provides that the total award of damages to the plaintiff shall be reduced "in proportion to the amount of negligence attributed" to the plaintiff. Id. § 60-258a(a); cf. Mick v. Mani, 766 P.2d 147, 150 (Kan. 1988) (discussing purposes of comparative negligence statute).

Section 60-258a thus speaks in terms of the jury or, in the event of a bench trial, the trial court making determinations as to the plaintiff’s total damages and comparative negligence following a trial. At the conclusion of such a fact finding trial, the plaintiff’s damage award is reduced by the court according to the negligence attributed to the plaintiff by the fact finder. Because the settlement in this case did not involve factual determinations of negligence and total damages following a trial, and because there was accordingly no reduced damage award, § 60-258a is inapplicable.

Like § 60-258a, § 39-719a(c) contains no language expressly referring to settlements. Copeland argues, however, that under § 39-719a(c), when there is a settlement, the court apportioning the settlement proceeds must make findings as to the negligence of the injured party, and then must reduce SRS’ subrogation right according to the injured party’s negligence. Section 39-719a(c), however, imposes no such requirement on the court.