UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1132

HARLEYSVILLE MUTUAL INSURANCE COMPANY, 

 Plaintiff - Appellant, 

 v. 

JENNIE BRIDGETT DAVIS; MARYLAND AUTOMOBILE INSURANCE FUND; 

VITTO PHILLIP LOMBARDO; SHAWNICE COTTON; PRESTON MAURICE 

HAWKINS; JOHANNES MARIE WILSON; ESTATE OF LARRY SETH 

GRIFFIN; JAMIE ANNA REEDER, 

 Defendants – Appellees, 

 and 

JAY DOUGHERTY; ERIC EUGENE BALLARD; ANTHONY PANZO; EDWIN J. 

DOUGHERTY; GEORGE PERDUE USED CARS, INCORPORATED, 

 Defendants. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:05-cv-01107-WMN) 

Argued: December 4, 2008 Decided: April 10, 2009 

Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation. 

Affirmed by unpublished opinion. Judge Smith wrote the majority 

opinion, in which Judge King concurred. Judge Duncan wrote a 

separate concurring opinion. 
ARGUED: William C. Parler, Jr., PARLER & WOBBER, Towson, 

Maryland, for Appellant. Donald S. Saiontz, James Kevin 

MacAlister, SAIONTZ, KIRK & MILES, P.A., Baltimore, Maryland, 

for Appellees. ON BRIEF: Phillip S. Anthony, PARLER & WOBBER, 

Towson, Maryland, for Appellant. Arthur M. Rubenstein, 

Baltimore, Maryland; Gerald F. Gay, ARNOLD, BACOT, GAY & DARBY, 

P.A., Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit. 

2 
SMITH, District Judge: 

 In July 2004, Larry Griffin (“Griffin”) was killed in a car 

accident while driving a Monte Carlo, on loan to his girlfriend, 

Jennie Davis (“Davis”), from a used-car dealership. The 

dealership’s insurer claimed that its policy did not cover the 

accident because Griffin did not have permission to drive the 

loaner car. After a two-day bench trial, the district judge 

concluded that Griffin had implied permission to drive the 

loaner car. The district judge also found that the insurer had 

not presented conclusive evidence to rebut the presumption under 

Maryland law of permissive use. Thus, the district court 

concluded that the insurance policy covered this accident. 

 Harleysville does not contest the district court’s findings 

of fact, but challenges its conclusions of law based on the 

factual findings. We review legal issues de novo. Fed. R. Civ. 

P. 52(a); see, e.g., Roanoke Cement Co., LLC v. Falk Corp., 413 

F.3d 431, 433 (4th Cir. 2005). For the following reasons, we 

affirm. 

I. 

 This dispute arises out of a July 1, 2004, accident 

involving a car loaned by Perdue’s Used Cars to Davis while her 

car was being repaired. Perdue’s Used Cars had an automobile 

insurance policy with Harleysville Mutual Insurance Company 

(“Harleysville”). The omnibus clause of the policy defined an 

3 
“insured” as “anyone else while using with your permission a 

covered ‘auto’ you own[.]” (J.A. 802.) No party disputes that 

the policy covers the loaner car given to Davis, but 

Harleysville claims that Griffin, the driver at the time of the 

accident, is not an “insured” because he lacked permission from 

either Perdue’s Used Cars or Davis to drive the loaner car. 

 Harleysville brought suit in the United States District 

Court for the District of Maryland to establish that it had no 

duty to defend or indemnify for claims arising out of this 

accident.1 On November 10, 2007, the district court found that 

Harleysville had a duty to indemnify and defend Davis for all 

claims arising against her from this accident, because she was 

indisputably a permissive user of the loaner car. The district 

court found genuine issues of material fact relating to whether 

Griffin had implied permission from Davis to drive the loaner 

car on the night of the accident. 

 Following the two-day bench trial, the district judge found 

the following facts, which have not been challenged on appeal. 

Davis regularly drove a 1996 Ford Taurus purchased from Perdue’s 

Used Cars. On June 30, 2004, Davis took the Taurus to the 

dealership for a repair under warranty. When told that the car 

 1

 On March 3, 2006, the district court entered a consent 

final judgment limited to claims between Perdue’s Used Cars and 

Harleysville, which claims are not at issue on appeal. 

4 
would not be ready that day, Davis asked for a loaner car to 

drive to work and take her children to daycare. George Perdue 

(“Perdue”), the owner of Perdue’s Used Cars, testified that he 

authorized the loan of a 2000 Monte Carlo, and that he gave 

Davis no instructions about how she could use the car or about 

who was allowed to drive it. Since he was loaning a replacement 

car, Perdue testified that he expected that Davis would use the 

Monte Carlo just like the Taurus. According to Perdue, Davis 

did not receive any paperwork or oral instructions when the car 

was loaned. At trial, Perdue’s son, David Perdue, testified 

that he--not his father--loaned Davis the Monte Carlo, and that 

he instructed Davis to use the car only for driving to work and 

daycare. Characterizing the testimony of Perdue’s son as 

incredible, the district court found that Perdue’s Used Cars 

gave Davis express permission to drive the car and that “no 

restrictions were placed on its use.” (J.A. 1470.) Thus, the 

district court found that Davis was free to use the Monte Carlo 

as she would have used her Taurus, which included permitting 

another person to drive the car. 

 Griffin had been living with Davis for several months 

before the accident. Based on the testimony of numerous 

witnesses, the district judge found that Griffin had Davis’s 

permission routinely to use her Taurus, without having to ask 

specifically to use the car on any given occasion. On the night 

5 
of the accident, Davis had picked up her children from daycare 

and returned home. Griffin was not home, although his Crown 

Victoria automobile was parked in the driveway. Davis left the 

keys to the Monte Carlo on the kitchen table, where she usually 

placed her car keys to the Taurus. After going to sleep early, 

Davis awoke when Griffin returned home and asked if she would 

like to go out to a club with him and some friends. She 

declined, saying that she had to get up early for work. While 

Davis later testified that she would not have let Griffin take 

the car out with friends if he had asked, the district court did 

not find that Griffin asked for permission to drive the loaner 

car, nor did the court find that Davis had placed any express 

restrictions on Griffin’s use of this car. The district court 

found that Griffin picked up the keys to the Monte Carlo, from 

the same place he usually found the keys to the Taurus, and that 

he took the loaner car out with friends, “assuming he was free 

to use the loaner car in the same manner that he freely and 

frequently borrowed Davis’s Taurus.” (J.A. 1472.) 

 In the early hours of July 1, 2004, Griffin was killed in a 

car accident. Several witnesses from the hospital testified 

that Davis showed remorse for letting Griffin drive the Monte 

Carlo, but the district court did not assume from this testimony 

that Davis had earlier expressly told Griffin that he could take 

the loaner car. The district court concluded: (1) Davis had the 

6 
authority to permit Griffin to use the Monte Carlo; (2) Griffin 

had implied permission to drive the Monte Carlo based on his 

unrestricted use of the Taurus; (3) Harleysville had not 

rebutted the presumption under Maryland law that Griffin was a 

permissive user of the car; and, thus, (4) the Harleysville 

policy covered the liability and damages for the July 1, 2004, 

accident. 

II. 

 Under Maryland law,2 words in an insurance policy receive 

their “customary, ordinary, and accepted meaning,” as a 

“reasonably prudent layperson” would understand them. State 

Farm Mut. Auto. Ins. Co. v. DeHann, 900 A.2d 208, 226 (Md. 

2006). While Maryland courts do not strongly construe insurance 

policies against the insurer, they do resolve ambiguities 

against the insurer as the drafter of the policy. Truck Ins. 

Exch. v. Marks Rentals, Inc., 418 A.2d 1187, 1191 (Md. 1980). 

Moreover, an “omnibus clause must be liberally construed in 

favor of the insured.” DeJarnette v. Fed. Kember Ins. Co., 475 

A.2d 454, 457 (Md. 1984). 

 2

 The parties agree that “[t]he substantive law of the State 

of Maryland governs the construction of the subject insurance 

contract in this case.” (J.A. 105 n.2) (citing Erie R.R. Co. v. 

Tompkins, 304 U.S. 64 (1938)). 

7 
 In an automobile insurance policy, an “omnibus clause” is a 

provision that extends coverage to individuals who use a car 

with the owner’s permission. See Blue Bird Cab Co., Inc. v. 

Amalgamated Cas. Ins. Co., 675 A.2d 122, 128 n.9 (Md. Ct. Spec. 

App. 1996). Under an omnibus clause, permission can be express 

or implied. See Bond v. Pa. Nat’l Mut. Cas. Ins. Co., 424 A.2d 

765, 768 (Md. 1981) (reading the term “permission” in an 

automobile insurance policy “as though the word ‘implied’ 

precedes it”). The “existence of permission, whether express or 

implied, is largely a factual determination, and one which 

varies in response to the circumstances present in each case.” 

Id. Implied permission may arise from the “course of conduct 

among those involved[.]” See State Farm Mut. Auto. Ins. Co. v. 

Martin Marietta Corp., 657 A.2d 1183, 1188 (Md. Ct. Spec. App. 

1995).3 

 The use of a car must “fall within the scope of permission 

given by the insured[.]” Nationwide Mut. Auto Ins. Co. v. 

 3

 Citing Maryland’s anti-theft statute, Harleysville 

contends that permission to use a vehicle cannot be presumed or 

implied based on prior permission. Md. Code Ann., Transp., 

§ 14-102(c) (for crimes of unauthorized use, owner’s consent may 

not “be presumed or implied because of the owner’s consent on a 

previous occasion”). As Maryland’s anti-theft statute has never 

been applied in any civil case, we do not find that it abrogates 

Maryland’s presumption of permission or examination of conduct--

which may include the driver’s prior use of a vehicle--to 

support a finding of implied permission. See Martin Marietta 

Corp., 657 A.2d at 1187-88; see also Bond, 424 A.2d at 768. 

8 
Cont’l Cas. Co., 589 A.2d 556, 561. To determine if a specific 

use falls “within the purview of the omnibus clause, one must 

examine the total facts” presented by the case. Fed. Ins. Co. 

v. Allstate Ins. Co., 341 A.2d 399, 407 (Md. 1975)(internal 

quotation omitted). Express restrictions may limit the scope of 

permission. See Md. Indem. Ins. Co. v. Kornke, 319 A.2d 603, 

611 (Md. Ct. Spec. App. 1974). But “comprehensive permission is 

more readily to be assumed where the use of the car is for 

social or non-business purposes,” rather than business purposes. 

Fed. Ins. Co., 275 A.2d at 408. 

 Finally, Maryland courts presume that the driver of a car 

has the permission of the car’s owner. See Martin Marietta 

Corp., 657 A.2d at 1187. The party arguing that the driver 

lacked permission has the burden of rebutting the presumption by 

conclusive evidence. Id. at 1188. 

III. 

 The unrestricted language of the omnibus clause in the 

Harleysville policy with Perdue’s Used Cars covers any use of an 

insured car, if permitted by Perdue’s Used Cars or its permitted 

drivers. The omnibus clause extends coverage to “anyone else 

while using with your permission a covered ‘auto’ you own[.]” 

(J.A. 802.) From the perspective of a reasonable layperson, 

this language does not limit the authority of Perdue’s Used Cars 

9 
to give others permission to use loaner cars insured by the 

Harleysville policy. Nor does this language restrict the 

authority of permitted drivers to allow others to use these 

loaner cars. Given Maryland’s liberal construction of omnibus 

clauses in favor of policyholders, the Harleysville policy 

allows both Perdue’s Used Cars and their permitted drivers to 

let others use an insured loaner car. 

 The district court found that Perdue’s Used Cars gave Davis 

express permission to drive the Monte Carlo--a car insured by 

the Harleysville policy--and that Perdue’s Used Cars did not 

restrict the use of the Monte Carlo by Davis. The district 

court further found that after this grant of express, 

unrestricted permission from Perdue’s Used Cars to Davis, she 

had full authority to use the Monte Carlo as she would have used 

the Taurus, including to let others drive the Monte Carlo. 

These factual findings are not contested. 

 Importantly, further undisputed facts establish a course of 

conduct supporting the district court’s conclusion that Griffin 

had implied permission from Davis to drive the Monte Carlo. On 

the night of the accident, Davis parked the Monte Carlo in her 

driveway where she parked the Taurus, and she left the keys on 

kitchen counter, just as she normally did. Griffin then found 

the keys in their usual place, and he saw the Monte Carlo where 

the Taurus was typically parked. Moreover, Griffin routinely 

10 
drove Davis’s Taurus, without her being present in the car. The 

district judge found that Griffin had Davis’s permission to 

“freely and frequently” drive the Taurus--a finding of fact that 

Harleysville does not contest. Further, Davis never forbade or 

restricted Griffin’s use of the Monte Carlo.4 

 As a regular driver of the Taurus, who saw the Monte Carlo 

located in the same place as he would have seen the Taurus, 

Griffin had the same freedom to take the Monte Carlo loaner car 

as the car it replaced. The ongoing implied permission that 

Davis gave Griffin to drive her personal car did not vanish when 

she received a substitute car. Perdue loaned the Monte Carlo to 

Davis to replace the Taurus while finishing repairs on it, and 

to use as a substitute for her regular car. Thus, the Monte 

Carlo was meant to serve the same purposes, and to be for the 

same uses, as the Taurus. Davis clearly viewed the Monte Carlo 

as a replacement for the Taurus, as shown by where she drove the 

car, where she parked it, and where she put the keys. Griffin 

was a regular permissive user of Davis’s Taurus. On these 

uncontested facts, we conclude that Griffin had implied 

 4

 Although Davis may have had uncommunicated restrictive 

thoughts and intentions on the night of the accident, she did 

not express them to Griffin. (J.A. 1471.) 

11 
permission to drive the Monte Carlo on the night of the 

accident.5 

 Finally, even if Davis had not submitted ample evidence of 

Griffin’s implied permission to drive the loaner car, 

Harleysville has not presented conclusive evidence to rebut the 

presumption that Griffin had permission to use the Monte Carlo. 

See Martin Marietta, 657 A.2d at 1187-88. Indeed, Harleysville 

has not presented any evidence that Griffin actually lacked 

permission to drive the Monte Carlo. Harleysville has failed to 

rebut Maryland’s strong presumption of permissive use. 

IV. 

 The uncontested facts of this case show that Griffin had 

implied permission to drive the Monte Carlo and that he did not 

exceed the scope of this implied permission. Moreover, no facts 

rebut the presumption under Maryland law that Griffin was a 

permissive user of the loaner car. As a result, the district 

 5

 Harleysville contends that Griffin could not have driven 

the car within the scope of permission, unless Davis had 

expressly permitted Griffin to take the Monte Carlo the night of 

the accident. This position contravenes Maryland’s settled law 

that permission may be express or implied and shown through a 

course of conduct. See Bond, 424 A.2d at 768; Martin Marietta, 

657 A.2d at 1188. Moreover, Griffin’s use of the car for the 

social purpose of going out with friends, rather than for a 

business reason, also supports the conclusion that he drove 

within the scope of his permission. See Fed. Ins. Co., 275 A.2d 

at 408. 

12 
13 

court properly held that Harleysville’s insurance policy covers 

this accident. 

 For the above reasons, the judgment of the district court 

is 

AFFIRMED. 
DUNCAN, Circuit Judge, concurring: 

 Although I ultimately agree with the majority’s fine 

opinion, I do so on slightly different grounds and with somewhat 

greater reservations, which I write separately to express. 

My concern flows from the majority’s conclusion that under 

the facts of this case, Maryland’s implied permission transfers 

between two vehicles. It is clear, as the majority states, that 

Griffin had permission to use Davis’s Taurus and that Davis 

herself was a permissive user of the Monte Carlo. It is also 

clear under Maryland law a course of conduct between parties may 

be sufficient to give rise to implied permission to use an 

automobile. However, in this case there was absolutely no 

evidence that Griffin had permission--implied or express--to use 

the Monte Carlo. There is no evidence in the record that 

Griffin and Davis discussed the provenance of the Monte Carlo or 

that Griffin even knew that it was a loaner car to replace her 

Taurus. Leaving one’s keys in the same place each night seems 

too small a quantum of evidence from which to imply permitted 

use. 

Were we deciding the issue of whether to imply permissive 

use, I would prefer to certify the question of such 

transferability to the Maryland courts to resolve in the first 

instance. I am persuaded, however, that the issue before us is 

14 
slightly different. This appeal presents the narrower question 

of whether Harleysville has carried its burden of proof. 

As the majority notes, under Maryland law there is a 

presumption that a driver operating a vehicle has either express 

or implied permission to do so. State Farm Mut. Auto. Ins. Co. 

v. Martin Marietta Corp., 657 A.2d 1183, 1186 (Md. Ct. Spec. 

App. 1995). The existence of this presumption shifts the burden 

to Harleysville to establish that Griffin did not have 

permission to use the vehicle when the accident occurred.* A 

party must show “conclusive evidence” to rebut the presumption 

as a matter of law. In the absence of such conclusive evidence, 

the presumption is a question for the finder of fact. State 

Farm, 657 A.2d at 1188; see also Empire Fire & Marine Ins. Co. 

 *

 The case law reveals that the presumption of permission 

functions as a burden-shifting device. In State Farm, the case 

cited by both parties to support the presumption, the court 

employed the presumption in this way: 

There is, however, a presumption that Mansel did have 

permission to be driving at that time. As soon as the 

stipulation was read to the jury, appellant had the 

benefit of this presumption, which shifted to 

appellees the burden of persuading the jury that 

Mansel did not have permission to be driving when the 

accident occurred. 

657 A.2d at 1186 (internal citations omitted). The court went 

on to say: 

The owner who asserts that the driver did not have 

permission should be held to the same burdens of 

production and persuasion as the owner who asserts 

that the driver was not an agent. . . . .[of showing] 

by a preponderance of the evidence that . . . [the 

driver] did not have permission. 

Id. at 1187. 

15 
16 

v. Liberty Mut. Ins. Co., 699 A.2d 482, 500 (Md. Ct. Spec. App. 

1996). 

As I noted earlier, in this case the record reflects an 

absence of evidence on the question of whether or not Griffin 

had permission to drive the Monte Carlo. I am not unsympathetic 

to Harleysville’s plight. Proving a negative-- here, the 

absence of implied permission-- is a difficult burden. It is, 

however, the burden imposed by Maryland law, and Harleysville 

has failed to meet it. 

For the narrow reason that Harleysville has failed to carry 

its burden of rebutting the presumption of permission, I concur 

in the majority’s opinion.