                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-1031


MARCUS HESSE, Guardian Ad Litem of Josef Hesse,

                Plaintiff – Appellant,

          and

HORST SCHWINN, Guardian Ad Litem of Doerte Hesse,

                Plaintiff,

          v.

HARLEYSVILLE    MUTUAL   INSURANCE   COMPANY;   CHARLES   STEPHEN
EBBETS,

                Defendants - Appellees.



                             No. 09-1033


HORST SCHWINN, Guardian Ad Litem of Doerte Hesse,

                Plaintiff – Appellant,

          and

MARCUS HESSE, Guardian Ad Litem of Josef Hesse,

                Plaintiff,

          v.

HARLEYSVILLE MUTUAL INSURANCE COMPANY,

                Defendant – Appellee,
             and

CHARLES STEPHEN EBBETS,

                   Defendant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:08-cv-00976-LMB-JFA)


Submitted:    September 18, 2009              Decided:    February 5, 2010


Before MOTZ and       KING,     Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Steven M. Garver, GARVER LAW OFFICES, P.C., Reston, Virginia;
Douglas K. W. Landau, ABRAMS & LANDAU, LTD., Herndon, Virginia,
for Appellants. Stanley P. Wellman, Danielle D. Giroux, HARMAN,
CLAYTOR, CORRIGAN & WELLMAN, P.C., Richmond, Virginia, for
Appellee Harleysville Mutual Insurance Company.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Stephen     Ebbets,      a        licensed     real     estate     agent

representing   Long     and     Foster   Real       Estate,   Inc.    (“Long    and

Foster”), caused a motor vehicle collision that severely injured

Josef and Doerte Hesse.         The Hesses, through their guardians ad

litem, brought this declaratory judgment action against Ebbets

and Harleysville Mutual Insurance Company (“Harleysville”), Long

and Foster’s insurance carrier, requesting the district court to

declare that Ebbets is insured under Long and Foster’s business

automobile insurance policy issued through Harleysville.                       The

district   court      granted     Harleysville’s          motion     to   dismiss.

Finding no error, we affirm.

           This    court      reviews        de    novo   a   district      court’s

dismissal pursuant to Fed. R. Civ. P. 12(b)(6).                    Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008).                   “The purpose of a

Rule 12(b)(6) motion is to test the sufficiency of a complaint

. . . .”   Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th

Cir. 1999).    To survive a Rule 12(b)(6) motion, a plaintiff must

“‘give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests.’”                Erickson v. Pardus, 551 U.S.

89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)).      The facts alleged must “raise a right to relief

above the speculative level,” and the complaint must contain



                                         3
“enough facts to state a claim to relief that is plausible on

its face.”     Twombly, 550 U.S. at 555, 570.

            A federal court sitting in diversity must apply the

choice of law rules of the forum state.               CACI Int’l, Inc. v. St.

Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009).

Virginia insurance law applies “the law of the place where an

insurance contract is written and delivered” to determine policy

coverage.      Buchanan v. Doe, 431 S.E.2d 289, 291 (Va. 1993).                  The

parties do not disagree that Virginia law applies in construing

this policy.

            Under Virginia law, an insurance policy is a contract

and, as with any other contract, the words used must be given

their   ordinary       meaning   if    they    are    susceptible    to   such    a

construction.      Graphic Arts Mut. Ins. Co. v. C.W. Warthen Co.,

397   S.E.2d    876,    877   (Va.    1990).     An   insurance     provision    is

ambiguous only if it may reasonably “be understood in more than

one way or when such language refers to two or more things at

the same time.”         Salzi v. Virginia Farm Bureau Mut. Ins. Co.,

556 S.E.2d 758, 760 (Va. 2002).                “A well-settled principle of

contract law dictates that where an agreement is complete on its

face, is plain and unambiguous in its terms, the court is not at

liberty to search for its meaning beyond the instrument itself.”

Ross v. Craw, 343 S.E.2d 312, 316 (Va. 1986) (internal quotation

marks omitted).

                                         4
              Having reviewed the record and the applicable law, we

conclude that Ebbets is explicitly excluded as an insured under

Long and Foster’s business automobile insurance policy issued

through Harleysville.           As a result, the Appellants failed to

state    a    claim   upon    which    relief   could    be   granted   and   the

district court properly granted the motion to dismiss.

              Accordingly, we affirm the judgment of the district

court.       We deny the Hesses’ motion to certify a question to the

Virginia Supreme Court.          We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials      before   the    court    and   argument    would   not   aid   the

decisional process.

                                                                        AFFIRMED




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