PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy and Koontz, S.JJ.
GOVERNMENT EMPLOYEES INSURANCE
COMPANY, ET AL.
OPINION BY
v. Record No. 100332 JUSTICE WILLIAM C. MIMS
April 21, 2011
UNITED SERVICES AUTOMOBILE
ASSOCIATION, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Randolph T. West, Judge Designate
In this appeal, we consider whether the evidence adduced
at trial was sufficient to establish liability under either of
two automobile insurance policies.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In April 1999, Thomas Laffey was injured when a 1989 Acura
Legend collided with his vehicle. Sharon Bass (“Sharon”) owned
the car and her daughter, Krystal Bass (“Krystal”), was its
primary user. Steven Parent (“Steven”) was driving the car at
the time of the collision.
Sharon had a family automobile insurance policy (“Sharon’s
Policy”) issued by Government Employees Insurance Company
(“GEICO”), which listed the car. Sharon’s Policy afforded
bodily injury liability coverage for those it insured while
they operated the car. As defined by the policy, in such
circumstances the insured included (1) Sharon, as the named
insured, or any resident in her household, and (2) “any other
person using [the car] with the permission of the named
insured, provided his actual operation . . . thereof is within
the scope of such permission.”
Steven’s mother, Annie Parent (“Annie”) had a family
automobile insurance policy (“Annie’s Policy”) issued by GEICO
Indemnity Insurance Company (“GEICO Indemnity”). Annie’s
Policy afforded bodily injury liability coverage for those it
insured while they operated a car owned by another. As defined
by the policy, in such circumstances the insured included (1)
Annie, as the named insured, and (2) “any relative, but only
with respect to a private passenger automobile . . . provided
his actual operation . . . thereof is with the permission, or
reasonably believed to be with the permission, of the owner and
is within the scope of such permission.”
Following the collision, Laffey presented claims to GEICO
and GEICO Indemnity for coverage under Sharon’s Policy and
Annie’s Policy, respectively. Each denied the claims on the
ground that Steven lacked permission to operate the car at the
time of the collision, which was necessary to incur liability
under either policy. Laffey then filed a motion for judgment
alleging that Steven had been negligent in his operation of the
car. 1 Laffey also served his own automobile insurance carrier,
United Services Automobile Association (“USAA”), to invoke his
1
A separate claim of negligent entrustment against Sharon
was subsequently dismissed and is not before us in this appeal.
2
uninsured/underinsured motorist coverage. GEICO and GEICO
Indemnity then filed a declaratory judgment action against
USAA, Annie, Steven, Sharon, Krystal, and Laffey seeking a
determination that neither carrier had any coverage obligation
for the collision. The declaratory judgment action was tried
to the circuit court in September 2009.
A. EVENTS PRECEDING THE COLLISION
1. KRYSTAL’S TESTIMONY
Krystal testified that she had planned to meet her
boyfriend, Charlie Daniels, on the evening of April 16. They
were to meet either at Steven’s house (the “Parent House”) or
at the home of Elaine Pamplin (“Elaine”), Daniels’ aunt, which
was two blocks away (the “Pamplin House”). Krystal drove first
to the Pamplin House, then to the Parent House a few minutes
later, arriving between 8:00 and 8:30 p.m. Because she did not
carry a purse, she placed her keys, cigarettes, and lighter on
a coffee table.
A group of Daniels’ and Steven’s mutual friends were
there, listening to music, playing cards, and drinking beer.
Krystal took a “couple of sips” of beer. At some point during
the three hours she waited for Daniels to arrive, she noticed
her keys were missing. When she asked where they were, Steven
said he had taken them so they would not get lost.
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After Daniels arrived, he and Krystal began arguing. The
argument moved from the house to the street, where he hit her
and walked away toward the Pamplin House. She returned to the
Parent House in tears and asked for her keys so she could go
home. She told Steven and the others that Daniels had struck
her. Agitated, Steven insisted on confronting Daniels at the
Pamplin House. He and one of his friends, Josh Robey, went to
the car. Steven, with the keys, got into the driver’s seat.
Krystal got into the passenger seat and Steven drove to the
Pamplin House. 2
When they arrived at the Pamplin House, Krystal took the
keys from the ignition. Steven and Robey went into the house
to confront Daniels. As Krystal approached the house, she
placed her keys, cigarettes, and lighter either on the front
step or on a nearby table on the porch. When she entered the
Pamplin House, one of the occupants told Steven and Robey that
Daniels had not hit Krystal. Krystal and Daniels then spoke
privately in the back of the living room. Minutes later, Chris
Pamplin (“Chris”), Elaine’s son and Daniels’ cousin, yelled to
Krystal that Steven had taken the car.
Krystal ran outside but Steven and the car were gone. She
called the police to report it stolen and then called her
2
During cross-examination, Krystal admitted that she had
said in an earlier deposition that she drove the car to the
Pamplin House.
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parents. The police later came to the Basses’ house and
informed them that the car had been in a collision. Sometime
thereafter, Steven spoke to her and said that he had taken the
car because he was angry, believing she had lied to him about
Daniels hitting her.
2. OTHERS’ TESTIMONY
Sharon corroborated that Krystal had called her to tell
her the car had been stolen and that Krystal had reported the
theft to the police. Sharon also testified that the police
came to their home after Krystal returned and informed them
that the car had been in a collision.
Chris contradicted much of Krystal’s description of the
events prior to the collision. He testified that earlier that
day, Krystal and Robey had driven together in Robey’s car.
During that time, Steven used her car to pick Chris up and take
him to the store. Daniels and Krystal subsequently met at the
Pamplin House, where the argument began. Krystal then drove
her car to the Parent House and soon thereafter Steven drove up
to the Pamplin House in the car with Krystal, Robey, and two
more of Steven’s friends. Krystal and Daniels resumed their
argument in the front yard and Chris told Steven that Daniels
had not hit her. Steven then glared at Krystal, got into the
car, and drove away. Krystal did not object for 30 to 45
minutes when Steven had not returned. She then called the
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police to report the car had been stolen. When the police
arrived to investigate her report, Chris told them that Steven
had not stolen the car.
Steven testified that he had been at the home of his
girlfriend, Shelly Roell, on the afternoon preceding the
collision. Roell lived across the street from the Pamplin
House. He went over to the Pamplin House around 4:00 p.m. and
Krystal and Daniels were already there. He then walked to the
Parent House where he and his friends watched television and
played cards. He did not recall seeing Krystal again until
around midnight, when she came in crying and said Daniels had
hit her. She then gave him her keys and he drove her, Robey,
and another friend to the Pamplin House, where Chris told him
that Daniels had not hit her. He believed she had lied to him
to start a fight between him and Daniels so he got in the car
and drove off to “blow[] off steam.” He denied that he had
taken her keys from the coffee table at the Parent House and
that she had ever taken them back from him after he drove her
back to the Pamplin House to confront Daniels. He admitted,
however, that she had not given him permission to drive the car
after they arrived there. He also denied speaking with her
about the collision after it occurred.
B. THE COLLISION
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Officer Paul Hogge of the Poquoson Police Department was
working radar near the boundary between Hampton and Poquoson in
the early morning hours on April 17. At approximately 1:00, he
saw an Acura speed from Poquoson into Hampton at 90 miles per
hour. Hogge pursued and discovered the car he was pursuing had
collided with another car about a quarter mile inside the
Hampton city limits.
Thereafter Officer Brian Wyer of the Hampton Police
Department responded to the scene. He ascertained that the
Acura Hogge had pursued was the car owned by Sharon and that
Steven had been driving it. Wyer detected the odor of alcohol
coming from the car, which contained at least twelve beer
bottles, many of which were empty.
C. PERMISSION TO USE THE CAR
Sharon testified that she and her husband expressly and
repeatedly instructed Krystal not to allow anyone else to use
the car. She also testified that she never had met Steven, and
if Krystal allowed others to use the car it was without her
knowledge and without her permission.
Krystal also testified that her parents had expressly and
repeatedly instructed her not to allow anyone else to use the
car. However, she testified that she had allowed Daniels to
drive the car once, contrary to their instructions. She
further testified that she concealed the fact of Daniels’ use
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from them because she would get in trouble if they found out.
She testified that she never allowed Steven or anyone else to
drive the car.
Chris contradicted Krystal’s testimony that she allowed
only Daniels to drive the car, and only once. According to
Chris, Krystal routinely let anyone who asked use the car while
she was at work or while she was at the Parent House or Pamplin
House with the group of friends. He testified that Daniels had
driven it on multiple occasions, and that Krystal and Daniels
previously argued because Daniels had been seen driving it.
Chris also testified that he himself had driven it multiple
times and that he had seen Robey and Steven drive it three or
four times each before the day of the collision. Chris
recalled only one occasion when she denied a request to use the
car, when she told Robey he could not use it because he had not
put gas in it after a prior use.
Steven testified that he had driven the car once or twice
before the events leading up to the collision, but only between
the Pamplin House and the Parent House. He also testified that
he had seen Daniels drive the car ten times but had never seen
anyone else drive the car.
Roell testified that she also had seen Daniels drive the
car three or four times. Sometimes he drove the car alone and
other times Krystal or Robey accompanied him. She also
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testified that Steven had told her he had used the car before
the collision.
Christina Parent, Steven’s older sister, testified that
she had seen Daniels drive the car countless times, and Krystal
would lend it to anyone who asked. She also testified that she
witnessed Krystal give the car keys to Steven the evening
before the collision, telling him to take them from her because
she had been drinking. However, Christina also testified that
she believed Krystal gave him the keys to hide because she was
upset and had been drinking, rather than to use himself.
D. THE CIRCUIT COURT’S JUDGMENT
The circuit court announced its ruling from the bench:
Quite candidly, it was difficult for me to
believe the testimony of a lot of the witnesses,
and I assure you, particularly the testimony of
Krystal and her mother. If either of you or any
of you watched Krystal as she testified, every
time she started--got stammered in any way, she
would look to her mother for assurances over
what she was saying, every time. She wasn’t
sure if she was testifying to what her mother
wanted her to testify.
. . . . And . . . to have somebody come in,
such as [Sharon] and say, Oh, I have told my
daughter that she is to never ever let someone
else drive this car, and the daughter comes in
and says, Yes, that’s exactly what she told me,
and I never let anybody else drive the car. The
only thing that gives me any problem in this
case is that no one testified that [Sharon] had
ever seen anyone else drive this vehicle.
. . . . The everyday conduct that
[Krystal] exhibited, and the use of the vehicle,
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I don’t believe for a moment that nobody else
drove this car. I have every belief that, in
fact, anybody that wanted to use this car used
it.
Is that sufficient to say that there is no
dispute as to whether or not the prohibition
that the mother testified to was sufficient?
And I think that’s the only question that I have
in this case. I don’t have any doubt about
[Annie’s Policy]. That policy is going to be
effective as far as this Court is concerned.
Krystal allowed people to use that car. I
have every reason to believe that from the
evidence here, that Steven had the permission.
He had the keys. That’s the way I read the
evidence, so I don’t have any problem with that
whatsoever.
The only one that gives me a problem is
whether or not . . . the course of conduct set
forth – and I agree that the case says it’s
irrelevant who owned the car[– b]ut I say for
all practical purposes in this case[,] that the
daughter was the owner of this vehicle.
[W]ho used the vehicle? The mother said
they used the vehicle occasionally to take
trips. I have very little confidence in the
conduct of the mother.
. . . . I think the course of conduct in
this was general use of the vehicle. I’m going
to [find] both policies effective.
Accordingly, the circuit court entered a final order that
Steven was entitled to coverage under both Sharon’s Policy and
Annie’s Policy. We awarded GEICO and GEICO Indemnity this
appeal.
II. ANALYSIS
A. STANDARD OF REVIEW
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The case was tried to the circuit court without a jury.
We therefore review the judgment for clear error and will not
set it aside unless it is plainly wrong or there is no evidence
to support it. County of Albemarle v. Keswick Club, L.P., 280
Va. 381, 389, 699 S.E.2d 491, 495 (2010). We consider the
evidence and all reasonable inferences fairly deducible from it
in the light most favorable to the prevailing party below.
Syed v. ZH Techs., Inc., 280 Va. 58, 68, 694 S.E.2d 625, 631
(2010). We review questions of law de novo. Id.
B. ANNIE’S POLICY
Annie’s Policy covered Steven’s use of the car only if the
use was “with permission, or reasonably believed to be with the
permission, of the owner and is within the scope of such
permission.” GEICO Indemnity concedes that Krystal was a
custodian of the vehicle and that by operation of Code § 38.2-
2204(A) she had the authority to give Steven permission to use
it for the purpose of Annie’s Policy. It also concedes that
the circuit court had the discretion to weigh the testimony and
the credibility of the several witnesses: it does not
challenge the court’s finding that Krystal allowed “anybody
that wanted to use” the car to use it. However, GEICO
Indemnity asserts there is no evidence establishing that Steven
was operating within the scope of that permission at the time
of the collision. We agree.
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A trial court sitting without a jury is the judge of the
weight of the testimony and the credibility of the witnesses.
Cheatham v. Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (1984).
Nevertheless, “[t]here must be some evidence in order to
support the verdict.” Barnes v. Hampton, 149 Va. 740, 744, 141
S.E. 836, 837 (1928).
Generally, there are two types of evidence
presented during a trial – direct evidence and
circumstantial evidence. Direct evidence is
offered to prove as a fact the point in issue.
Circumstantial evidence, by contrast, is offered
to prove a fact not directly in issue, from
which a fact in issue may reasonably be
inferred.
Commonwealth v. Hudson, 265 Va. 505, 512, 578 S.E.2d 781, 785
(2003).
“There is no distinction in the law between the weight or
value to be given to either direct or circumstantial evidence,”
id., and we have expressly stated that “[c]ircumstantial
evidence, if convincing, is entitled to the same weight as
direct testimony.” Britt v. Commonwealth, 276 Va. 569, 573,
667 S.E.2d 763, 765 (2008). Thus, “[t]he finder of fact is
entitled to consider all of the evidence, without distinction,
in reaching its determination.” Hudson, 265 Va. at 512-13, 578
S.E.2d at 785.
We agree with GEICO Indemnity that the circuit court was
wholly within its singular competence to observe the witnesses
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and evaluate their credibility, thereby weighing their
testimony and making its findings of fact. The circuit court
discounted as unreliable Krystal’s testimony that she only
allowed Daniels to drive the car, and only once. We accept the
court’s finding that she routinely allowed others to drive the
car. Based on that finding, Steven reasonably could have
believed he had her permission to use the car. However, we
also must examine whether his particular use – the angry
escapade that culminated in the collision – was within the
scope of that permission.
Each witness testified that those whom Krystal allowed to
drive the car did so with her express permission and that they
drove only for short distances, either between the Parent House
and the Pamplin House, within the confines of the neighborhood
encompassing those houses, or to nearby stores. No witness,
including Steven and Chris, who themselves drove the car,
testified that Krystal ever had permitted anyone to drive the
car out of Hampton into surrounding localities. To the
contrary, though Chris substantially discredited much of
Krystal’s testimony, he testified that she called police to
report the car stolen when Steven failed to return within 30 to
45 minutes, indicating that such a lengthy excursion was
extraordinary and unexpected. He also testified that she
routinely warned those to whom she lent the car to “[b]e
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careful,” “take care of it,” and not to “go out . . . hot
riding in it.”
There simply is no evidence in the record supporting the
circuit court’s judgment that Steven’s use of the car at the
time of the collision was within the scope of the permission he
may reasonably have believed he had. Likewise, such a
conclusion is not a reasonable inference from the direct
evidence in the face of the contradictory testimony.
Accordingly, we will reverse that portion of the court’s
judgment.
C. SHARON’S POLICY
Sharon’s Policy covered Steven’s use of the car only if
the use was “with the permission of the named insured,” i.e.,
Sharon, provided the use was “within the scope of such
permission.” The parties agree that there is no evidence that
Sharon either met Steven before the collision or expressly
granted him permission to use the car. GEICO concedes that
under Code § 38.2-2204(A) Sharon’s permission may be express or
implied.
When a named insured entrusts a car to another for his
general use, the person so entrusted--i.e., the first
permittee-- also may permit a third person to use the car--
i.e., the second permittee. In such instances, we have held
that the second permittee has the implied permission of the
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named insured to use the vehicle. Virginia Farm Bureau Mut.
Ins. Co. v. Appalachian Power Co., 228 Va. 72, 77, 321 S.E.2d
84, 87 (1984). The second permittee then is covered under the
policy of the named insured. Code § 38.2-2204(A) (“No policy
or contract of bodily injury or property damage liability
insurance, covering liability arising from the ownership,
maintenance, or use of any motor vehicle . . . shall be issued
or delivered in this Commonwealth . . . unless the policy
contains a provision insuring the named insured, and any other
person using or responsible for the use of the motor vehicle
. . . with the expressed or implied consent of the named
insured, against liability for death or injury sustained, or
loss or damage incurred within the coverage of the policy or
contract as a result of negligence in the operation or use of
such vehicle . . . by the named insured or by any such
person.”)
Code § 38.2-2204, the omnibus clause, is a remedial
statute enacted to serve the public policy of broadening the
coverage of automobile liability insurance for the protection
of the injured persons. Liberty Mut. Ins. Co. v. Tiller, 189
Va. 544, 548-49, 53 S.E.2d 814, 816 (1949). Whether a
particular operator of a vehicle comes within such coverage
depends on the facts of each case. Fidelity & Cas. Co. of New
York v. Harlow, 191 Va. 64, 68, 59 S.E.2d 872, 874. (1950).
15
Accordingly we have resolved coverage questions by determining
whether the actions of a permittee who operated the vehicle
were consistent with the scope of the actual or implied
permission from the named insured. Liberty Mut. Ins. Co., 189
Va. at 549, 53 S.E.2d at 816 (citing State Farm Mut. Ins. Co.
v. Cook, 186 Va. 658, 666-67, 43 S.E.2d 863, 867 (1947)).
However, we have not addressed directly the circumstances in
which a permittee vested with general use permission from the
named insured may limit coverage under the omnibus clause to a
second permittee by imposing restrictions on the use of the
vehicle.
In Robinson v. Fidelity & Casualty Co. of New York, 190
Va. 368, 57 S.E.2d 93 (1950), we considered the argument that
operation of the vehicle by a second permittee beyond the scope
of permission granted by the first permittee negated coverage
of the second permittee under the omnibus clause. In that
case, the first permittee, who had been given general use of
the vehicle by the named insured, loaned the vehicle to a
second permittee but did not loan the car to the second
permittee for “his general personal use.” Id. at 372, 57
S.E.2d at 95. The second permittee was using the vehicle for
his personal use at the time of the accident. We concluded
that, considering the facts of that case, a jury could find
that the use by the second permittee was reasonably within the
16
scope of his authority to drive the car. Id. at 372-73, 57
S.E.2d at 94-95.
Although coverage under the omnibus clause was sustained
in Robinson, we acknowledged that under different facts
coverage could be limited under the omnibus clause for a second
permittee based on the scope of permission received from the
first permittee. Whether the second permittee exceeded such
permission was a factual issue to be resolved by the fact-
finder. Id. at 373, 57 S.E.2d at 95; see also Columbia Cas.
Co. v. Hoohuli, 437 P.2d 99, 106 (Haw. 1968) (opining as dictum
that a first permittee may limit the permission of a second
permittee). This case presents such facts. We hold that a
first permittee with general use has authority to permit either
general use or to impose such limits on use by a second
permittee as the first permittee may find prudent, just as a
named insured may limit use by a first permittee.
Thus, we may assume without deciding that Krystal had
permission for general use from Sharon and thus, pursuant to
the omnibus clause, Stephen had Sharon’s implied permission to
use the car. However, we have determined for the purposes of
Annie’s Policy that Stephen’s use of the car at the time of the
accident, unlike that of the second permittee in Robinson, was
beyond the scope of the permission given him by Krystal, the
first permittee. Just as the remedial purpose of the omnibus
17
clause is not extended to provide coverage when the first
permittee operates a vehicle beyond the scope of permission
received, it should not be extended to circumstances in which a
second permittee operates the vehicle beyond the scope of
permission received from the first permittee who “ ‘st[ands] in
the shoes’ ” of the named insured. Virginia Farm Bureau Mut.
Ins. Co., 228 Va. at 78, 321 S.E.2d at 87 (quoting Robinson,
190 Va. at 371, 57 S.E.2d at 94).
Accordingly, we will reverse that portion of the circuit
court’s judgment extending coverage for the collision under
Sharon’s Policy.
III. CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the circuit court and enter final judgment in favor of GEICO
and GEICO Indemnity.
Reversed and final judgment.
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