                            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
Escort Services,                                 No. 03-1056
                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: January 8, 2004

     Before NIEMEYER and TRAXLER, Circuit Judges, and
    Richard D. BENNETT, United States District Judge for the
           District of Maryland, sitting by designation.



Certification order, entered by Judge Niemeyer with the concurrences
of Judge Traxler and Judge Bennett.
2                   LOMBARD CANADA v. JOHNSON
                             COUNSEL

ARGUED: Michael Douglas Lorensen, BOWLES, RICE,
MCDAVID, GRAFF & LOVE, P.L.L.C., Martinsburg, West Vir-
ginia, for Appellant. Ronald S. Rossi, MARTIN & SEIBERT, L.C.,
Martinsburg, West Virginia, for Appellee.


                             OPINION

NIEMEYER, Circuit Judge:

          ORDER OF CERTIFICATION TO THE
    SUPREME COURT OF APPEALS OF WEST VIRGINIA

   The United States Court of Appeals for the Fourth Circuit, exercis-
ing the privilege afforded it by the State of West Virginia through the
Uniform Certification of Questions of Law Act, W. Va. Code Ann.
§§ 51-1A-1 through 51-1A-13, requests the Supreme Court of
Appeals of West Virginia to exercise its discretion to answer the fol-
lowing question:

    Does B & D Lalonde Trucking, a tortfeasor who was strictly
    liable to the State and who settled this liability before suit
    by obtaining a release from "all claims whatsoever which
    could arise from the damages or any other damages of [the
    State] which could be based on the incident," have a cause
    of action for contribution under West Virginia law against
    Mark Johnson, whose negligence contributed to the State’s
    injury?

This court acknowledges that the Supreme Court of Appeals may
reformulate this question. See W. Va. Code Ann. § 51-1A-4.

   The underlying facts are not in dispute. In March 1999, B & D
Lalonde Trucking and Hauling, Inc. ("B & D Lalonde Trucking"), a
Canadian corporation insured by Lombard Canada, Ltd., obtained a
special permit from the West Virginia Department of Transportation
to haul an oversized load on roads in the State. Mark Johnson, doing
                     LOMBARD CANADA v. JOHNSON                        3
business as C & L Escort, was hired to act as the lead escort for the
hauling trip.

   The special permit required that the permittee avoid passing under-
neath the West Virginia Route 901 overpass on Interstate 81 near
Spring Mills, West Virginia, by exiting Interstate 81 and re-entering
beyond the overpass. Both Johnson and B & D Lalonde Trucking
failed to follow the permit 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 of $222,486.71.

   Under West Virginia law, B & D Lalonde Trucking, as permittee,
became strictly liable to the State for any damage to the highway or
highway structure. The relevant West Virginia statute provides:

    The owner, lessee or borrower of any vehicle . . . driven or
    moved upon any highway or highway structure shall be lia-
    ble for all damage which said highway or structure may sus-
    tain . . . as a result of operating, driving, or moving any
    vehicle . . . weighing in excess of the maximum weight in
    this chapter but authorized by a special permit issued as pro-
    vided in this article.

W. Va. Code Ann. § 17C-17-13(a). On behalf of B & D Lalonde
Trucking, Lombard Canada settled with the State of West Virginia for
$210,000 ($12,486.71 less than the estimated actual damages). Under
the terms of the settlement, the State agreed to

    release and forever discharge Releasees, B.D. Lalonde
    Trucking & Hauling and Lombard Canada Insurance Lim-
    ited, and its presidents, other officers, directors, sharehold-
    ers, attorneys, parent companies, subsidiaries, adjusters, and
    employees of said corporations and the heirs and legal rep-
    resentatives of all of the Releasees, from all liability with
    respect to such matters and from all claims and causes of
    action based on the aforesaid incident and the resulting
    property damage, whether known or unknown to Releasor,
    and whether they have now arisen or will arise in the future.
4                    LOMBARD CANADA v. JOHNSON
The State agreed to "assume all risks of and for claims heretofore and
hereafter arising, known or unknown." The settlement also stated that
"[t]his is intended to be a Release of all claims whatsoever which
could arise from the alleged damages or any other damages of Relea-
sor which could be based on the incident." Lombard Canada and B
& D Lalonde Trucking agreed that if they recover damages above
$210,000 from any third party, they will reimburse the State the addi-
tional amount up to $12,486.71 (the difference between the estimated
actual damages and the settlement amount).

   Lombard Canada, as subrogee of B & D Lalonde Trucking, filed
a complaint against Mark Johnson for contribution in the United
States District Court for the Northern District of West Virginia, based
on diversity jurisdiction. The jury returned a verdict finding B & D
Lalonde Trucking 75% at fault and Johnson 25% at fault, and based
on this verdict, the district court entered a judgment of $52,500 (plus
interest) in favor of Lombard Canada against Johnson. The District
Court rejected Johnson’s legal argument that West Virginia law does
not recognize a settling joint tortfeasor’s right to sue another joint
tortfeasor for contribution. Johnson appealed the judgment to this
court.

   On appeal to this court, Johnson cites Howell v. Luckey, 518 S.E.2d
873 (W. Va. 1999), in support of his contention that West Virginia
does not recognize an independent cause of action for contribution.
Johnson interprets Howell as recognizing a right to contribution only
within the context of a suit by the tort victim, where the joint tortfea-
sors can be subject to a joint judgment for liability. Johnson also con-
tends that the settlement agreement did not release him from liability
and would not have prevented the State from suing him for damages
exceeding the settlement amount.

   Lombard Canada, on the other hand, contends that it had an incho-
ate right to contribution under Haynes v. City of Nitro, 240 S.E.2d 544
(W. Va. 1977), and it interprets Howell as precluding an independent
cause of action for contribution only where judgment has already
been rendered in the underlying case (i.e., if there is a suit by a tort
victim, a joint tortfeasor defendant must implead other joint tortfea-
sors else the right to contribution will be lost). Lombard Canada con-
tends that it had a right to seek contribution from Johnson because
                     LOMBARD CANADA v. JOHNSON                        5
there was no litigation and therefore no judgment with respect to the
State’s underlying claim because Lombard Canada and the State set-
tled outside of a litigation context.

   We are unaware of any controlling decisions of the West Virginia
state courts on this determinative question. Thus, we believe that it is
properly subject to review by the West Virginia Supreme Court of
Appeals on certification. See W. Va. Code Ann. § 51-1A-3.

  The names and addresses of counsel of record for the parties are:

    Counsel for Lombard Canada, Ltd.

    Ronald S. Rossi, Esquire
    Martin & Seibert, L.C.
    1164 Winchester Avenue
    Post Office Box 1286
    Martinsburg, West Virginia 25402-1286

    Counsel for Johnson

    Michael D. Lorensen, Esquire
    Bowles, Rice, McDavid, Graff & Love, P.L.L.C.
    101 South Queen Street
    Martinsburg, West Virginia 25401

  Accordingly, pursuant to the privilege made available by the West
Virginia Uniform Certification of Questions of Law Act, it is hereby
ORDERED:

    (1) That the question stated above be, and the same hereby
        is, certified to the West Virginia Supreme Court of
        Appeals; and

    (2) That the Clerk of this court forward to the West Vir-
        ginia Supreme Court of Appeals, under the official seal
        of this court, a copy of this order and, to the extent
        requested by the West Virginia Supreme Court of
        Appeals, the original or a copy of the record in this
        court; and
6                   LOMBARD CANADA v. JOHNSON
    (3) That any request for all or part of the record be ful-
        filled by the Clerk of this court simply upon notifica-
        tion from the Clerk of the West Virginia Supreme
        Court of Appeals.

   This Order is entered by Circuit Judge Niemeyer, with the concur-
rences of Circuit Judge Traxler and District Judge Bennett.

                                                    /s/
                                        Paul V. Niemeyer
                                        United States Circuit Judge

Dated: January 8, 2004
