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PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., and Lacy and Koontz, S.JJ. GOVERNMENT EMPLOYEES INSURANCE COMPANY, ET AL. v. Record No. 100332 OPINION BY 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

A separate claim of negligent entrustment against Sharon was subsequently dismissed and is not before us in this appeal. 2

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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. her. She told Steven and the others that Daniels had struck Agitated, Steven insisted on confronting Daniels at the He and one of his friends, Josh Robey, went to

Pamplin House. 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. to confront Daniels. Steven and Robey went into the house

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 Minutes later, Chris

privately in the back of the living room.

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. called the police to report it stolen and then called her During cross-examination, Krystal admitted that she had said in an earlier deposition that she drove the car to the Pamplin House. 4
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She

parents.

The police later came to the Basses' house and Sometime

informed them that the car had been in a collision.

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 Krystal then drove

Pamplin House, where the argument began.

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 Krystal did not object for 30 to 45 She then called the

car, and drove away.

minutes when Steven had not returned.

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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. House. Roell lived across the street from the Pamplin

He went over to the Pamplin House around 4:00 p.m. and He then walked to the

Krystal and Daniels were already there.

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 She

drive the car once, contrary to their instructions.

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 She also

other times Krystal or Robey accompanied him.

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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

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