contention, the counterclaim requests the court to find that if Home's policy does provide coverage for Sullivan's suit, Home is liable for up to $ 180,000 under the policy, which includes a $ 100,000 per claim limit of liability and a $ 10,000 per claim deductible. This order concerns the parties' cross motions for summary judgment on the counterclaim. For the reasons stated herein, Home's motion for summary judgment on the counterclaim is granted; Wiener's and Lieberman's similar motion is denied.
Sullivan's malpractice action complains of Wiener's and Lieberman's representation of Sullivan in a 1979 case in which Sullivan was convicted of murder. Wiener was appointed to represent Sullivan on July 17, 1979, and handled the case for about four months. Lieberman, one of Wiener's associates, took the case over from Wiener in early November 26, 1979. Lieberman prepared the case for trial and represented Sullivan at his trial on November 26, 1979. Sullivan's malpractice suit alleges that both Wiener and Lieberman failed to locate, interrogate, or procure the testimony of five separate eyewitnesses to the murder whose testimony would have exculpated Sullivan. Sullivan claims that he was convicted and imprisoned as a direct result of Wiener's and Lieberman's negligence in failing to procure the exculpatory testimony.
Wiener and Lieberman argue that since they acted independently of each other in handling Sullivan's case, their alleged acts of negligence give rise to two separate claims under their professional liability policy. However, as Home points out, the policy has a specific provision which addresses the circumstances present here. In relevant part, the provision reads:
LIMITS OF LIABILITY