C.B., D.B., and S.B v. GUNTER EVDOKIMOFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2859-07T22859-07T2

C.B., D.B., and S.B.,

Plaintiffs,

v.

GUNTER EVDOKIMOFF, SUZANNE EVDOKIMOFF,

and TOWNSHIP OF BLOOMFIELD BOARD OF

EDUCATION,

Defendants.

______________________________________

AMERICAN INTERNATIONAL INSURANCE

COMPANY and AMERICAN HOME

ASSURANCE COMPANY,

Plaintiffs-Respondents,

v.

C.B., D.B., S.B., GUNTER EVDOKIMOFF,

and TOWNSHIP OF BLOOMFIELD BOARD

OF EDUCATION,

Defendants-Respondents,

and

SUZANNE EVDOKIMOFF,

Defendant-Appellant.

____________________________________

 

Submitted October 7, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. L-6406-06.

Stephanie P. Tettemer, attorney for appellant

Suzanne Evdokimoff.

Ronan, Tuzzio & Giannone, attorneys for

respondents American International Insurance

Company and American Home Assurance Company

(Gregory W. Boyle, of counsel and on the brief;

Marie A. Accardi, on the brief).

Respondents C.B., D.B., and S.B. did not file a brief.

Respondent Gunter Evdokimoff did not file a brief.

Respondent Township of Bloomfield Board of

Education did not file a brief.

PER CURIAM

Defendant Suzanne Evdokimoff appeals pursuant to leave granted from a trial court order granting summary judgment to American International Insurance Company ("American International") and American Home Assurance Company ("American Home") and declaring that she is not entitled to coverage under certain insurance policies with respect to an action pending against her brought by C.B., D.B. and S.B. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Gunter Evdokimoff was employed as a teacher at Bloomfield High School for more than thirty years. While so employed, he engaged in a sexual relationship with C.B., a student at the high school. C.B. was fifteen years old and a sophomore at the time the relationship commenced; it continued into her junior year. Her encounters with Evdokimoff occurred at various places: in school, outside of school and on more than one occasion, at his home. Gunter was married to Suzanne during the pertinent time period, but the two are now divorced.

After their relationship was discovered, Evdokimoff was arrested. He eventually entered a negotiated plea of guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2c(3)(b), and one count of second-degree official misconduct, N.J.S.A. 2C:30-2a, and was incarcerated at the time of the proceeding below.

In December 2005, C.B. and her parents, D.B. and S.B., filed suit and named as defendants Evdokimoff, his wife Suzanne, and the Bloomfield Board of Education. With respect to Suzanne Evdokimoff, they alleged that she had been aware of her husband's conduct and had taken no steps to intervene or to protect C.B.

The Evdokimoffs have a son who is the same age as C.B. C.B. testified in her deposition that she and Gunter had agreed that she would feign an interest in the couple's son to provide an explanation for her staying at their house overnight on several occasions. C.B. said that when she did stay, she would use a room on the first floor. She testified that on one of those occasions, Suzanne entered the room in which C.B. was staying and discovered her husband and C.B. engaged in sexual activity. C.B. said that Suzanne removed her husband from the room but said nothing to her and remained silent about what she had discovered.

Suzanne gave a different version of what had occurred. She said she knew her husband had gotten up and come downstairs to get a drink. When she did not hear anything, she got out of bed and came downstairs looking for him. She said there were no lights on but the door to the room C.B. was using was open, and she saw him in the room. She said he was not at full height and his head was at the approximate level of the door knob. She said she could not see or hear C.B. She asked him what he was doing but said she then heard her dogs whimpering to go outside, and she turned and left to attend to them. When she returned, he was in the kitchen and the two went upstairs. Suzanne said she did not become aware that Gunter had engaged in a sexual relationship with C.B. until he returned from a meeting he attended in November 2003 with C.B.'s parents and their attorney.

Suzanne and her now-former husband, defendant Gunter Evdokimoff, had a homeowners' insurance policy issued by American Home and an umbrella policy issued by American International. Both policies were in effect during the relevant time period.

After the B.s filed suit, American Home and American International issued reservation of rights letters to both Evdokimoffs and then commenced a declaratory judgment action, contending that the claims for damages in the B.s' action were not covered under the policies the carriers had issued. The trial court granted the insurers' motion for summary judgment with respect to both individual defendants and, as we noted at the outset, we granted Suzanne's motion for leave to appeal.

Both Suzanne and Gunter were named insureds under both policies. The American Home policy provided liability coverage for an "occurrence," defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in 'bodily injury.'" The policy, however, had the following exclusion for liability coverage:

With respect to all "insureds" which is expected or intended by one or more "insureds" even if the "bodily injury" or "property damage":

(1) Is of a different kind, quality or degree than expected or intended; or

(2) Is sustained by a different person or entity than expected or intended.

In addition, the policy had a severability clause:

This insurance applies separately to each "insured." This condition will not increase our limit of liability for any one "occurrence."

The umbrella policy issued by American International had, in its standard form, Exclusion 12 which excluded coverage for:

Bodily Injury, Personal Injury or Property Damage resulting from any willful or malicious act or omission by any person. We also will not cover claims for acts or omissions of any person which are intended to result in, or would be expected by a reasonable person to cause, Bodily Injury, Personal Injury or Property Damage. This exclusion applies even if the injury or damage is of a different kind or degree, or is sustained by a different person, than expected or intended. This exclusion does not apply to Bodily Injury if the Insured acted with reasonable force to protect any person.

An endorsement, however, modified this exclusion to provide coverage for "the insured who does not participate in or have knowledge of the intentional act."

Suzanne argues on appeal, as she did before the trial court, that summary judgment was improper in light of her contention that she did not know of or condone her husband's conduct with C.B. She contends that there is a material question of fact as to whether she knew or should have known what was taking place between her former husband and C.B. that precludes summary judgment. We agree with respondents, however, that under the relevant policy language the question of whether she was aware of her husband's activities with C.B. is immaterial and that summary judgment was thus properly entered.

In our judgment, this matter is controlled by the recent decision of our Supreme Court in Villa v. Short, 195 N.J. 15 (2008). Plaintiff in that case was sexually abused when she was a young child by her mildly retarded uncle who was in his early twenties when the abuse occurred. Id. at 19. On becoming an adult, she filed suit for damages, naming not only her uncle as a defendant but her grandparents with whom he resided at the time, contending that they had negligently supervised their son. Ibid. The grandparents had a homeowners' liability policy with Allstate Insurance Company, but Allstate contended there was no coverage for the grandparents on the basis of the following exclusionary clause:

We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.

[Id. at 20.]

The Court rejected the grandparents' contention that the policy language was ambiguous and that they were thus entitled to coverage under the well-settled principles that ambiguities in an insurance policy must be construed in favor of the insured, Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001); McClellan v. Feit, 376 N.J. Super. 305, 321 (App. Div. 2005), and that exclusionary clauses should be narrowly construed. Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997); S.T. Hudson Engineers, Inc. v. Penn. Nat'l. Mut. Cas. Co., 388 N.J. Super. 592, 604 (App. Div. 2006), certif. denied, 189 N.J. 647 (2007). In rejecting this argument, the Court stated that it

agree[d] that the phrase "an insured" in insurance policy exclusions is not ambiguous. In the present case, the policy language excludes all insureds from coverage for damages caused by the intentional or criminal acts of an insured.

[Villa, supra, 195 N.J. at 26.]

In our judgment, the clause at issue here in the American Home policy is equally clear and unambiguous; it excluded coverage for all insureds for the intentional acts of any insured. Gunter's acts were intentional, and thus the homeowners' policy provided no coverage to Suzanne.

The Court in Villa, moreover, rejected the argument that Suzanne puts forth here with respect to the severability clause.

In sum, we do not read the severability clause to infuse ambiguity into the plain language of the policy exclusion for the intentional or criminal acts of an insured. The severability provision merely makes the coverage available to each insured who is entitled to it up to the limits on the declarations page. The provision does not affect the unambiguous exclusion for intentional or criminal acts of an insured.

[Id. at 28.]

We recently noted in an analogous case the public policy concerns that could flow from a determination that coverage should be afforded to the spouse of a child molester.

[A]llowing "[i]nsurance [coverage in child molestation cases] would provide [] a spouse with an undue incentive to value the stability and privacy of the marriage over the well-being of the child-victim." "[O]ne who purchases homeowner insurance does not contemplate coverage for sexual misconduct committed by one's [spouse]."

[High Point Ins. Co. v. J.M., 398 N.J. Super. 562, 570 (App. Div. 2008) (citations omitted).]

The trial court correctly concluded that Suzanne Evdokimoff was not entitled to coverage under the policy issued by American Home.

We reach the same conclusion with respect to the umbrella policy issued by American International. We recognize that the exclusion for intentional acts within that policy was modified with the statement that coverage would be provided "for the insured who does not participate in or have knowledge of the intentional act."

We do not consider that modification determinative. The umbrella policy also clearly excluded claims for bodily injury "arising out of any actual or threatened . . . sexual abuse, molestation, licentious, immoral or sexual behavior." The claims asserted by the B.s arise out of Gunter's sexual abuse and molestation of C.B. and thus are not covered by this policy.

Our conclusion in this regard is fortified by the same public policy concerns we noted in our discussion of the underlying homeowners' policy. High Point, supra, 398 N.J. Super. at 570.

The order under review is affirmed.

 

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A-2859-07T2

RECORD IMPOUNDED

November 28, 2008