On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-6406-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2008
Before Judges Wefing, Yannotti and LeWinn.
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 ...