LOMBARD CANADA, LIMITED, as Subrogee of B & D Lalonde Trucking v. Mark E. Johnson, d/b/a C & L No. 03-1056 Escort Services

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 LOMBARD CANADA, LIMITED, as
Subrogee of B & D Lalonde
Trucking and Hauling, Incorporated,
a foreign corporation,
Plaintiff-Appellee,
v.
MARK E. JOHNSON, d/b/a C & L No. 03-1056 Escort Services,
Defendant-Appellant,
and
WAKLEY ESCORT SERVICE,
INCORPORATED; SHUMAN FLAG CAR
SERVICES; MARY FIORELLO,
Defendants. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-01-18-3)
Argued: December 5, 2003
Decided: August 5, 2005
Before NIEMEYER and TRAXLER, Circuit Judges,
and Richard D. BENNETT, United States District Judge for the
District of Maryland, sitting by designation.
Vacated and remanded with instructions by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Traxler and Judge Ben-
nett joined.

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COUNSEL
Michael Douglas Lorensen, BOWLES, RICE, MCDAVID, GRAFF
& LOVE, P.L.L.C., Martinsburg, West Virginia, for Appellant. Ron-
ald S. Rossi, MARTIN & SEIBERT, L.C., Martinsburg, West Vir-
ginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Lombard Canada, Limited, as subrogee of B & D Lalonde Truck-
ing and Hauling, Incorporated, commenced this action against Mark
E. Johnson for contribution with respect to a $210,000 settlement that
Lombard Canada entered into with the State of West Virginia.
In March 1999, Lalonde Trucking obtained a special permit from
West Virginia to haul an oversized load on roads in the State. Mark
Johnson, doing business as C & L Escort Services, was hired to act
as the driver of the lead vehicle for the hauling trip. The permit
required that Lalonde Trucking avoid passing underneath the West
Virginia Route 901 overpass on Interstate 81 near Spring Mills, West
Virginia, by exiting Interstate 81 before the overpass and re-entering
beyond. Both Lalonde Trucking and Johnson failed to follow the per-
mit instructions to exit and re-enter Interstate 81, and the oversized
load struck the Route 901 overpass, causing damages to the State of
West Virginia in the amount of $222,486.71. Lombard Canada, as the
insurer of Lalonde Trucking, settled West Virginia’s claim for
$210,000 and then commenced this action against Johnson for contri-
bution. Operating under a comparative negligence system, the jury
returned a verdict in favor of Lombard Canada and against Johnson
in the amount of $52,500.
On appeal, Johnson contends that West Virginia does not recognize
a settling joint tortfeasor’s right to sue another joint tortfeasor for con-
tribution. Finding no controlling decisions from West Virginia state
courts on this question, we certified the question to the Supreme
Court of Appeals of West Virginia pursuant to West Virginia Code
2 LOMBARD CANADA v. JOHNSON

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§ 51-1A-3. See Lombard Canada, Ltd. v. Johnson, 356 F.3d 507 (4th
Cir. 2004).
In an opinion dated May 11, 2005, the Supreme Court of Appeals
of West Virginia answered the question, concluding that "Lombard
Canada, as the settling party, is not permitted to assert an inchoate
right of contribution against an additional tortfeasor through an inde-
pendent cause of action. . . . Absent the critical procedural predicate
of a lawsuit filed by the injured party, [West Virginia,] the law of this
state does not veer from the common law prohibition of preferring not
to aid wrongdoers." Lombard Canada, Ltd. v. Johnson, ___ S.E.2d
___, ___ (W. Va. 2005) (citation omitted).
Accordingly, we vacate the judgment of the district court and
remand with instructions to dismiss Lombard Canada’s contribution
claim.
VACATED AND REMANDED WITH INSTRUCTIONS
3 LOMBARD CANADA v. JOHNSON

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