Present:   All the Justices

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

v.   Record No. 941263         OPINION BY JUSTICE HENRY H. WHITING
                                        June 9, 1995

MARY ELLEN HAINES, ET AL.

              FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                      Kenneth E. Trabue, Judge


      In this appeal in a declaratory judgment action, we consider

the effect of an admission obtained under Rule 4:11 upon the

party making the admission and upon other parties to the action.
      In August 1990, Mary Ellen Haines (Haines) bought a 1984

Subaru station wagon for the use of her daughter Jennifer.

Haines took title to the Subaru and added it to her State Farm

Mutual Automobile Insurance Company (State Farm) liability

policy, with Haines shown as the named insured and Jennifer as

the primary driver.   Jennifer made the down payment on the

vehicle and paid half of the deferred monthly payments, as well

as that portion of Haines's insurance premiums attributable to

the Subaru.

      No restrictions were placed on Jennifer's use of the Subaru

when it was purchased or two months later when she took it with

her and moved into an apartment with Daniel Todd Walton (Walton),

to whom she was married shortly thereafter.   However, after

seeing Walton driving the Subaru, Haines told Walton and Jennifer

that Walton could not drive it because his driver's license had

been suspended for one year.   Haines told Walton and Jennifer

that Walton had to be a licensed driver and have insurance "to

drive the car."
     On February 8, 1991, Walton was driving the Subaru when he

ran off Interstate Highway 64 in Allegheny County, killing one

passenger, Paul A. Thurston, Jr., and injuring two other

passengers, Lorie A. Forbes and Karen R. Vance.   State Farm was

notified by representatives of the three passengers of their

intent to assert claims against Walton arising from his allegedly

negligent operation of the Subaru.    As pertinent here, State

Farm's liability insurance policy provided coverage to Walton if

his operation of the Subaru was "with the permission of the named

insured, provided his actual operation . . . is within the scope

of such permission."
     State Farm filed this declaratory judgment proceeding

against Haines, Walton, Jennifer, Paul A. Thurston, Sr.,

administrator of the estate of Paul A. Thurston, Jr. (the

administrator), Forbes, Vance, and other insurance companies

whose liabilities might be affected by a ruling upon State Farm's

liability under its policy.   In paragraph 9 of its original and

amended motion for declaratory judgment, State Farm alleged that:
               At the time of the accident, Daniel T. Walton had
          no license to operate a motor vehicle and had been
          expressly forbidden by Mary Ellen Haines from operating
          the Haines automobile. This prohibition had been
          directly communicated to both Daniel T. Walton and
          Jennifer Haines Walton prior to the accident.


Haines admitted these allegations in her answer to the amended

motion for declaratory judgment filed on October 2, 1991.

     On May 4, 1992, Haines unequivocally admitted the following

of State Farm's requests for admissions:



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               7. At the time of the accident, Daniel T. Walton
          had no license to operate a motor vehicle and had been
          expressly forbidden by Mary Ellen Haines from operating
          the 1984 Subaru automobile referred to above. This
          prohibition had been directly communicated to both
          Daniel T. Walton and Jennifer Haines Walton by Mary
          Ellen Haines prior to the accident.

               RESPONSE:   Admit

               8. At the time of the accident, Daniel T. Walton
          did not have permission from Mary Ellen Haines to be
          operating the 1984 Subaru automobile.

               RESPONSE:   Admit

     At a jury trial on December 2, 1993, the parties agreed that

the defendants had the risk of nonpersuasion on their claim that

Haines had given Walton permission to operate the Subaru.   Haines

was the defendants' only witness who testified on the issue

whether she had given permission to Walton to operate the Subaru.

Haines's testimony was introduced over the objection of State

Farm, which asserted that she was bound by her responses to the

above requests for admission and could not testify to the

contrary either in her own behalf or on behalf of the other

defendants.

     Haines testified that the reason she prohibited Walton's

operation of the Subaru was (1) that she thought his driver's

license suspension would continue until he further contacted the

court and recovered actual possession of his license, and (2)

that she thought Walton would not be insured under her State Farm

policy unless he was "placed on the policy that I had."   Haines

further testified that "[i]f [Walton] is licensed and has




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insurance, yes, he may drive [the Subaru]."    On its

cross-examination of Haines, State Farm read into evidence

numbers seven and eight of the requests for admission and

Haines's responses thereto.

        The defendants also introduced into evidence a record of the

Juvenile and Domestic Relations District Court of Allegheny

County showing that Walton's "privilege to operate a motor

vehicle is suspended for 12 months [effective February 2, 1990]."

The trial court ruled that he again became a licensed driver on

February 2, 1991, six days before the accident.
        Overruling State Farm's motions to strike the defendants'

evidence at the conclusion of their case and again at the

conclusion of State Farm's case, the court submitted the

permission issue to a jury.    The jury found that Walton had

Haines's express or implied permission to operate the Subaru, and

the court entered judgment on the verdict.    State Farm appeals.

        As pertinent, Rule 4:11(a) provides that "[a] party may

serve upon any other party a written request for the admission,

for purposes of the pending action only, of the truth of any

matters within the scope of Rule 4:1(b)."    As relevant here, Rule

4:1(b) provides that parties may obtain discovery of "any matter,

not privileged, which is relevant to the subject matter involved

in the pending action."    Rule 4:11(b) provides in pertinent part

that:
                  Any matter admitted under this Rule is
             conclusively established unless the court on motion
             permits withdrawal or amendment of the admission. . . .



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            Any admission made by a party under this Rule is for
           the purpose of the pending action only and is not an
           admission by him for any other purpose nor may it be
           used against him in any other proceeding.


The defendants never moved the court to permit Haines's

admissions to be withdrawn or amended.

     The defendants argue that Haines's admissions do not bind

her or them.   First they contend that State Farm's use of the

requests for admission was one "inconsistent with the spirit of

the rules as described by this Court," since the purpose of Rule

4:11 is to relieve a litigant of the burden of proving undisputed

facts.   And the defendants note that the question of permission

is "the sole issue in dispute."    The defendants cite TransiLift

Equip., Ltd. v. Cunningham, 234 Va. 84, 90, 360 S.E.2d 183,

186-87 (1987), DeRyder v. Metropolitan Life Ins. Co., 206 Va.

602, 611, 145 S.E.2d 177, 183 (1965), and General Accident Fire

and Life Assurance Corp. v. Cohen, 203 Va. 810, 813, 127 S.E.2d

399, 401 (1962), in support.   We find no merit in this

contention.

     The flaw in this contention is that the issue of permission

was not in dispute between State Farm and Haines when the
requests for admission were made.       This was not the situation in

Cohen, in which a litigant failing to answer a request for

admission had denied the facts contained in the request in a

previously filed pleading.   Here, Haines's answer to the motion

for declaratory judgment indicated that the issue of permission

was not in dispute, and when the requests for admission were



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filed later, she agreed that she had not given permission and had

forbidden Walton's operation of the Subaru.

       Nor was an undue hardship being imposed upon Haines that

would have justified her refusal to establish the opposing

litigant's case, as in DeRyder, 206 Va. at 611-12, 145 S.E.2d at

183-84.   Haines was simply requested to admit a fact within her

own knowledge.

       We did not decide whether a request for admission was proper

in TransiLift.    Instead, since the admissions were not introduced

into evidence, we held that they were not binding upon the

litigant who made the admissions.      234 Va. at 92, 360 S.E.2d at

188.

       Next, the defendants claim that the requests for admission

"did not conform to the required standards of clarity and

fairness."   According to the defendants, the request that Haines

admit that "Walton had no license to operate a motor vehicle" was

confusing because it could have meant that Walton "did not have a

license with him, that he was not eligible for a license or that

the DMV had never issued him a license."     Additionally, the

defendants contend that the request for admission asked Haines to

admit something "which the evidence at trial showed to be untrue

[since] [t]he trial court found, as a matter of law, that Danny

Walton had a valid driver's license."

       We need not consider this argument since the balance of

request number seven clearly asked for an admission that at the



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time of the accident, "Walton . . . had been expressly forbidden

by Mary Ellen Haines from operating the [Haines automobile]."

And request number eight was equally clear in asking that Haines

admit that "[a]t the time of the accident, Daniel T. Walton did

not have permission from Mary Ellen Haines to be operating the

1984 Subaru automobile."   These were requests for an admission of

matters within Haines's knowledge.     And she admitted

unequivocally that, at the time of the accident, not only had she

not given permission for Walton's operation of the Subaru, but

she had expressly forbidden him to do so.

     Since State Farm's request for Haines's admission regarding

permission was clear and fair, we find no merit in the

defendants' first contention.   Accordingly, we hold that Haines's

responses "conclusively established" that she had not only not

given Walton permission to operate the Subaru, but had forbidden

him to do so.   Rule 4:11(b).   Because those responses were

judicial admissions that bind Haines in this proceeding, the

trial court erred in admitting her testimony to the contrary in

support of the defendants' case.

     Finally, the other defendants contend that even if Haines is

bound by her admissions, they are not.    We agree that Haines's

admissions would not preclude the defendants from introducing

evidence other than Haines's testimony to show that she had given

permission to Walton.   However, these defendants did not do so;

instead, they relied solely upon Haines's testimony, which was



                                 -7-
inadmissible.   Since there was no other evidence from which the

jury could have found that Haines had given permission to Walton

to operate the Subaru, the trial court erred in failing to

sustain State Farm's motions to strike the defendants' evidence.

     Accordingly, we will reverse the judgment of the trial

court.   We will also enter a final judgment for State Farm that

it is not obligated under its insurance contract to provide a

defense and coverage to Walton with respect to the claims of the

administrator, Forbes, or Vance.   We will remand the case for

further proceedings upon Virginia Farm Bureau Mutual Insurance

Company's cross-motion for declaratory judgment against Vance,

which was stayed by the court pending this appeal.

                                      Reversed,
                                           final judgment in part,
                                           and remanded in part.




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