                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-2130


SELECTIVE WAY INSURANCE COMPANY,

                Plaintiff – Appellant,

          v.

ROSEANNE   BROWNING  APPLE;   EARL  EUGENE   HOAR;  BUILDING
INDUSTRIES, INC.; PROGRESSIVE GULF INSURANCE COMPANY,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.      Norman K. Moon,
Senior District Judge. (3:13-cv-00042-NKM-RSB)


Submitted:   September 23, 2016           Decided:   October 6, 2016


Before MOTZ, TRAXLER, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Melissa W. Robinson, Johneal M. White, GLENN ROBINSON & CATHEY,
Roanoke, Virginia, for Appellant. Jason W. Konvicka, ALLEN,
ALLEN, ALLEN & ALLEN, Richmond, Virginia; John J. Rasmussen,
INSURANCE RECOVERY LAW, Richmond, Virginia; Marc A. Peritz,
MORIN & BARKLEY, LLP, Charlottesville, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Selective Way Insurance Company (“Selective”) appeals from

the district court’s order granting judgment in favor of the

Appellees on Selective’s complaint for a declaratory judgment

that   it    has   no    duty    to   indemnify      Appellee    Roseanne    Browning

Apple against liability for an accident she caused while driving

her automobile.           For the reasons that follow, we vacate the

district court’s order.

       Selective        issued    a     general       commercial      liability     and

business     automobile      insurance        policy    to    Building   Industries,

Inc. (“BI”), a corporation owned by Apple’s husband and son.

The vehicle Apple was driving on the day of the accident was

listed in that policy as a covered automobile.                       However, BI did

not own that vehicle; it was titled in the names of Apple and

her husband.        The day of the accident, Apple was driving her

husband home from the hospital following a surgery he had when

she struck Appellee Earl Eugene Hoar, causing injury.

       Selective filed a complaint for a declaratory judgment that

it had no duty to indemnify Apple for the accident because she

was    not   an    insured      under   the       policy.     The    Appellees     filed

counterclaims for a declaratory judgment and for other relief.

After disposing of the parties’ pretrial motions, the court held

a bench trial and subsequently entered judgment in favor of the

Appellees.         The    court       concluded      that    while   Apple   was    not

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entitled to coverage under the terms of the policy, Selective

was obligated to provide coverage by virtue of application of

Virginia’s omnibus clause, Va. Code Ann. § 38.2-2204(A), because

Apple was a permissive user, having implicit permission from BI

to operate the vehicle.

     “[W]e review judgments resulting from a bench trial under a

mixed standard of review: factual findings may be reversed only

if clearly erroneous, while conclusions of law are examined de

novo.”       Raleigh     Wake       Citizens      Ass’n     v.    Wake    Cty.    Bd.    of

Elections, 827 F.3d 333, 340 (4th Cir. 2016) (internal quotation

marks     omitted).          Virginia’s          omnibus    clause       provides      that

automobile insurance policies issued in the state on vehicles

used in the state must contain a provision insuring the named

insured and any person using the vehicle with the expressed or

implied    consent      of    the    named       insured    against      liability      for

damages    resulting         from   negligence         in   the    operation      of    the

vehicle.     Va. Code Ann. § 38.2-2204(A).                  “[T]he 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.”                     Gov’t Emp. Ins. Co. v.

United    Serv.   Auto.       Ass’n,    708       S.E.2d    877,    883    (Va.     2011).

Generally,    whether        a   driver      of    a   vehicle     comes    within      the

coverage of the omnibus clause depends on the particular facts

of the case.      Id.

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      Here,   the   district     court    concluded        that    Apple   was    a

permissive user of the vehicle because BI implicitly consented

to her use of the vehicle for personal reasons.                   Virginia courts

have held that pursuant to the omnibus clause, a person using a

motor vehicle must do so with the consent of the named insured

and that “a named insured generally cannot give permission to

use a vehicle that the named insured does not own.”                      Stone v.

Liberty Mut. Ins. Co., 478 S.E.2d 883, 886 (Va. 1996).

      Therefore, in order for one's use and operation of an
      automobile to be within the meaning of the omnibus
      coverage clause requiring the permission of the named
      insured, the latter must, as a general rule, own the
      insured vehicle or have such an interest in it that he
      is entitled to the possession and control of the
      vehicle and in a position to give such permission.

Id. (quoting Nationwide Mut. Ins. Co. v. Cole, 124 S.E.2d 203,

206 (Va. 1962)).

      The   district   court    determined   that     BI    had    the   right    to

grant permission to Apple to use the vehicle because the company

provided the funds to pay for the vehicle, paid the premiums for

the   commercial    insurance,     paid   for   the    maintenance         of    the

vehicle, and would suffer pecuniary loss if the vehicle were

destroyed.    However, under Virginia law, for an entity to have

an interest that entitles it to possession and control of a

vehicle, that entity’s “relation to or control over the car must

be such that [it] has a right to give or withhold the permission

or consent to use it.”         Va. Auto. Mut. Ins. Co. v. Brillhart, 46

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S.E.2d 377, 380 (Va. 1948); see also Cole, 124 S.E.2d at 206

(“It is well settled that ‘permission’ to drive a car, within

the meaning of the omnibus coverage clause, connotes the power

to grant or withhold it.”).         In addition, the owner of a vehicle

does not operate a vehicle pursuant to permission from any other

party, but rather by virtue of his or her ownership of the

vehicle.    See Brillhart, 46 S.E.2d at 380 (“use of [a] car [by

an owner is] by virtue of his ownership of it and his right to

control it, and not by virtue of the grant of any permission to

him by” another).

      It   is   clear,    therefore,   that    because     Apple   owned    the

vehicle, see Hall, Inc. v. Empire Fire & Marine Ins. Co., 448

S.E.2d 633, 635 (Va. 1994) (“The owner of an automobile is the

party who has legal title to it.”), she was not a permissive

user as contemplated by the omnibus clause.                As Apple had the

right to operate the vehicle by virtue of her ownership thereof,

BI could not have granted or denied Apple the right to use the

vehicle for her personal use.

      Accordingly, we vacate the judgment of the district court

and remand for further proceedings consistent with this opinion.

We   dispense   with     oral   argument   because   the   facts   and     legal

contentions      are     adequately     presented     in     the    materials




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before this court and argument would not aid in the decisional

process.

                                          VACATED AND REMANDED




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