St. Paul Property and Liability Ins. Co. v. Eymann

• Decision Date: 23 August 1990
• Docket Number: No. 1,CA-CV,1
• Citation: 802 P.2d 1043,166 Ariz. 344
• Parties: The ST. PAUL PROPERTY AND LIABILITY INSURANCE COMPANY, Plaintiff-Appellant, v. Bernard E. "Sonny" EYMANN; and Stan Cusumano, Defendants-Appellees. 89-009.
• Court: Arizona Court of Appeals

Page 1043

802 P.2d 1043

166 Ariz. 344

The ST. PAUL PROPERTY AND LIABILITY INSURANCE COMPANY, Plaintiff-Appellant, v. Bernard E. "Sonny" EYMANN; and Stan Cusumano, Defendants-Appellees.

No. 1 CA-CV 89-009.

Court of Appeals of Arizona Division 1, Department E.

Aug. 23, 1990.

Review Denied Jan. 8, 1991.

[166 Ariz. 345] Jones, Skelton & Hochuli by William J. Schrank, Phoenix, for plaintiff-appellant.

Holloway & Thomas by Paul W. Holloway, Kevin B. Sweeney, Phoenix, for defendants-appellees.

OPINION

GRANT, Chief Judge.

St. Paul Property and Liability Insurance Company (St. Paul) appeals from a judgment entered on a jury verdict determining that Bernard E. Eymann's homeowner's insurance policy provided Eymann with liability coverage for Stan Cusumano's claim against him for injuries suffered when Eymann struck Cusumano in the face. St. Paul additionally appeals from a formal order denying its motion for new trial or judgment notwithstanding the verdict. St. Paul's appeal raises the following issues: (1) whether the trial court erred in permitting Joel Glassman to testify and render opinions regarding Eymann's state of mind and intent; (2) whether the trial court erred in denying St. Paul's motion for directed verdict based on the substance of Glassman's testimony; (3) whether the trial court erred in refusing to instruct the jury concerning the Steinmetz- Clark presumption; ¹ and (4) whether the trial court erred in declining to clarify the term "mental derangement" as requested by the jury. We hold that the trial court erred in declining to direct a verdict for St. Paul, and accordingly do not reach the remaining issues.

FACTS AND PROCEDURAL HISTORY

Viewed in the light most favorable to upholding the judgment, the facts are as follows. Cindy Cusumano and Bernard "Sonny" Eymann were married for approximately nine years, and had two children. In January of 1986, Cindy moved out of the Eymann home and into her own apartment in Tempe without warning. Eymann was upset, and over several weeks in January and February, spoke periodically to Cindy about their marriage. It seemed to Eymann that at that time Cindy was "sitting on the fence" about whether she would continue with the separation.

Stan Cusumano, a professional photographer, was a customer at Snappy Photo Finishing, a business owned by the Eymanns. Although Cindy first met Cusumano in December of 1985, she started seeing him socially after she filed for divorce. Eymann was not aware of this.

Several days before February 20, 1986, Cusumano was at Cindy's apartment helping her hook up her stereo when Eymann came over unexpectedly to talk to Cindy about the status of their marriage. Eymann was surprised to see Cusumano there and asked Cusumano to step outside for a moment, which Cusumano did. Eymann and Cindy had a conversation for a few minutes, then Eymann came out, thanked Cusumano and left.

Cusumano and Cindy arranged to go out to dinner the evening of February 20, 1986. That day, Eymann quit work around 6:00 P.M. and went home and fed the children. Sometime later he drove over to Cindy's apartment even though Cindy had not invited him and was not expecting him.

Cusumano had arrived earlier at Cindy's apartment to take her to dinner. While Cindy was in the bathroom getting ready and Cusumano was in her kitchen getting a glass of water, Eymann knocked on the front door. Cindy went to the window to the left of the front door, looked out and saw Eymann. She neither spoke to him nor answered the door. Instead, she walked back into the bathroom to finish getting ready to go out with Cusumano. Upset, Eymann pounded forcefully on the door and then broke the door open with his shoulder, entering the apartment. Eymann walked over where Cusumano and Cindy were now standing. Eymann was extremely upset, and Cindy and he began shouting at each other. At one point, Eymann asked Cusumano to leave. Eymann testified that Cusumano replied that the apartment was neither his nor Eymann's, and that Eymann was "the one that had no business there and not him." According to Eymann, right after that Cusumano took a step toward Eymann with his hands up as if he were going to grab him. Eymann's impression was that Cusumano was going to try to throw him out. As Cusumano stepped toward him, Eymann hit him on the left side of the head with his right hand. ²

Eymann testified that although he intended to hit Cusumano, he did so to stop Cusumano, and did not intend to hurt him. He claimed that he didn't direct a blow to the side of Cusumano's head, but swung at him as Cusumano tried to get him. He further testified that he knew he was hitting Cusumano, and while he "did not maybe realize the consequences of what it was going to do,.... [he] realized [he] was trying to stop him."

Both Cusumano and Cindy testified that Eymann said to each of them, "I am going to kill you," before he struck Cusumano. Eymann denied this. Cusumano denied making any sudden movements or raising his hands toward Eymann before Eymann struck him. Cusumano testified that Cindy asked Eymann to leave, and that in response to that Eymann looked at him as if to say "What do you think?" Cusumano testified that he threw up his hands and told Eymann it was not Cusumano's apartment, and was starting to turn to go back toward the refrigerator to get his drink of water when Eymann struck him.

After Eymann struck Cusumano, Cusumano slipped down to the floor and stayed there, holding his hands over his head and bleeding. Eymann immediately knelt by Cusumano, put his arms around him and told him he was sorry. Eymann began crying and fell over on the floor. Cusumano got up and went into the bathroom. Eymann got up, called Cindy a whore and hit her. He then left the apartment on his own.

Eymann testified he had never been in the same frame of mind or experienced the same emotions before or since the evening of February 20, 1986. Cindy testified Eymann was extremely upset, emotionally distraught and out of control. She testified he had never threatened her before and was like a completely different person. She testified she had never seen him like that before or after that night.

On the evening of February 20, 1986, Eymann was covered by a personal liability policy issued by St. Paul. The policy provided in pertinent part:

LEGAL LIABILITY PROTECTION. Under the liability section of this policy you're covered when somebody makes a claim against you. We'll cover your legal liability ... if you're involved in a covered accident or incident where there is personal injury, anywhere in the world.

What's legal liability? Any injury, damage or loss that you're responsible for under the law.

....

What do we mean by accident or incident? Anything that causes property damage, personal injury or death without you expecting or intending it. If you could've expected the result, you're not covered. The only exception is assault and battery committed to save a life or property.

Cusumano filed a civil action against Eymann. On October 6, 1986, St. Paul filed the instant declaratory judgment action against Eymann and Cusumano. St. Paul sought a declaration that its policy afforded no coverage for the damages and injuries Cusumano was claiming in his action against Eymann and imposed no duty on St. Paul to defend Eymann or otherwise participate in that action.

St. Paul took a default judgment against Cusumano. Its claim against Eymann was tried to a jury. Over St. Paul's objection, the trial court permitted Eymann's counsel to present expert opinion testimony from psychologist Glassman.

Glassman conducted an initial evaluation of Eymann on February 21, 1986. He diagnosed Eymann as suffering from an acute major depression caused by the divorce. When asked whether Eymann had the mental capacity to form the intent to injure Cusumano, Glassman replied:

Mr. Eymann had the mental capacity to distinguish between whether his actions would be right or wrong. He could have made an intent, if that was what was occurring, he could have planned an intention because he had sufficient control over his intellect. If he had intentions of injuring somebody, he could have made that decision.

....

So, my response to your question is, could he have planned an intention to injure someone? Yes, I think he could have, because he was in sufficient control when--of his intellect and his reason to do that. Did he have an intention of hurting someone? No. It turned out to be a spontaneous event that happened after he was denied entry, was told to go away, and was rejected again by his wife. And there still was no intent at that time, he just reacted.

Glassman also testified that Eymann's depressive state, together with the additional rejection he experienced, contributed to a welling up of emotions which was released through an angry outburst, and that his depression and anger in turn "significantly impaired his ability to control his actions." Glassman testified:

My opinion is that he suffered from a significant compromise in his judgment and his reasoning at the moment in time that evening due to his emotional state, and as a result of that, was not fully in control of his actions.

On cross-examination, Glassman testified that Eymann had no impairment of his intellect. He testified:

Q. And you never found him to have any derangement in his mental capacity, did you?

A. If I understand what derangement means, and my response is was he psychotic or was he suffering from a thinking disorder like a schizophrenia, the answer is no, he was not suffering from any of those.

Q. All right. And, in fact, on the evening of February 20, 1986, he was not suffering from any derangement as you just defined it; correct?

A. Correct.

He further testified:

Q. Doctor, you have expressed some opinions regarding Mr. Eymann's state of mind on the evening of February 20, 1986. And I want to ask you if it's fair to say that in your opinion as to Eymann, and,...