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St. Paul Property and Liability Insurance Co. v. Eymann8/23/1990
e when he struck Cusumano so overmastered his will as to disable him from acting rationally. In addition, unlike the insureds in Vagnozzi and Meere, Eymann has not taken the position that his conduct toward Cusumano was privileged or otherwise justified. Finally, we find that like the conduct in Steinmetz and Clark, Eymann's conduct was of a type so certain to cause injury to Cusumano that Eymann's intent to cause injury must be conclusively presumed. We accordingly conclude that the trial court erred in denying St. Paul's motion for a directed verdict.
Because of our disposition of this appeal, we have not addressed the question whether the trial court erred in denying St. Paul's motion in limine to preclude Glassman's testimony altogether. Similarly, we need not consider whether the trial court erred in declining to instruct the jury on the Steinmetz-Clark presumption, and whether the trial court committed error in responding to a request by the jury for further clarification of the term "mental derangement."
ATTORNEY'S FEES
St. Paul requests this court to reverse the award of attorneys' fees and costs to Eyman and Cusumano below, and to award St. Paul its costs and fees incurred in discovery, at trial, and on appeal, pursuant to A.R.S. ยง 12-341.01. In accordance with the decision we reach today, we vacate the trial court's award of costs and fees below because the defendants are no longer the prevailing parties. However, in our discretion, we decline to award St. Paul its costs and fees incurred below and in this appeal. See Associated Indemn. Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985).
DISPOSITION
Reversed and remanded with directions to enter judgment N.O.V. in favor of St. Paul.
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