MARCUS HESSE, Guardian Ad Litem of Josef Hesse v. Harleysville Mutual Insurance Company; Charles Stephen Ebbets

UNPUBLISHED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,

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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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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“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).
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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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