Tuesday, August 16, 2005

Fourth Circuit finds no independent claim of contribution under W.Va. law

In Lombard Canada, Ltd. v. Johnson, No. 03-1056 (4th Cir., August 5, 2005) (PDF), the Fourth Circuit reversed a jury verdict in a contribution claim by one joint tortfeasor against another, holding that the right of contribution among joint tortfeasors does not exist as an independent claim between tortfeasors under West Virginia law.

The case is easier to understand when you know the facts. The plaintiff's subrogee was a trucking company that was hauling an oversized load down I-81. Their load was very tall and in danger of hitting overpasses. As required by law, they obtained a permit and employed an escort service, defendant Johnson, to lead the way and to make sure their oversized load had adequate clearance. The permit stated that the trucking company was to exit the interestate at a certain point to avoid a low overpass. Somehow, this did not occur, communication between the escort and the hauler broke down and the oversized load smacked into an overpass, causing $222,486.71 in damage.

By statute, B & D, as the operator and permit holder, was strictly liable for any property damages caused by deviation from the permit, regardless of its degree of fault. (W.Va. Code § 17C-17-13). It quickly settled out of court with the State of West Virginia (who owned the overpass) for $210,000. Then, it sued Mr. Johnson claiming he was partially (or totally) to blame.

The case went to trial and the jury returned a verdict placing 75% of the fault on the trucking company and 25% on the escort. The plaintiff appealed, and the Fourth Circuit certified the following question to the Supreme Court of Appeals of West Virginia:
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?

The West Virginia Supreme Court answered
"Lombard Canada, as the settling party, is not permitted to assert an inchoate right of contribution against an additional tortfeasor through an independent 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, No. 03-1056 (W. Va. 2005). Based upon the answer to the certified question, the Fourth Circuit reversed the jury verdict and remanded with directions to dismiss the plaintiff's claim.

1 comment:

James Raymond said...

I can definitely relate to that. Before considering much else, I pretty much decided that Canadian immigration is my best option and although I have been tempted to reconsider from time to time, I can't help but think about how much the 2000 elections have changed things for us (and not for the better I'm affraid).

I really enjoy this blog, I'll be back!