The opinion of the court was delivered by: RUETER
United States Magistrate Judge
Presently before the court is the defendant's motion for summary judgment, and plaintiff's response thereto. For the reasons that follow, the motion is granted.
Plaintiff Omne Services Group, Inc. ("Omne") is a New Jersey corporation which is in the business of providing temporary workers and outsourcing services to its customers. (Declaration of Barry Sinins, 3/27/98, P2, hereinafter "Sinins Decl.".) For a fee, Omne provided outsourcing services for two customers, Metro Labor Solutions ("Metro"), and four companies owned by Timothy R. Kraft ("Kraft"). According to the Complaint, Omne's employee, Steven Sabolsky, caused Omne to enter into contracts with these two companies whereby the companies would outsource their employees to Omne, that is, the workers would be placed on Omne's payroll so that Omne had the legal responsibility to pay taxes and unemployment insurance premiums. Furthermore, Omne assumed workers compensation liability for all the companies' employees. (Sinins Decl. P2.) However, the employees of these companies continued to provide services to their companies after they were outsourced to Omne. (Complaint P10.)
At all times relevant hereto, Hartford Insurance Co. ("Hartford") provided Omne with a "Commercial Crime Policy" (the "Crime Policy") which provided insurance coverage for monetary loss which Omne sustained by reason of "Employee Dishonesty". The Hartford Crime Policy provides that the "Limit of Insurance" is $ 100,000 per occurrence. The terms "Employee Dishonesty", "Employee" and "Occurrence" are defined in the Crime Policy.
Omne's complaint against Hartford alleges that because of the dishonesty of two of its "employees", Steven Sabolsky and Kraft, it sustained losses in excess of $ 600,000. (Complaint P13.) Omne made a claim with Hartford for the losses, but Hartford has denied coverage. In its complaint, plaintiff alleges breach of contract (Count I); that Hartford breached its common law "duty of good faith and fair dealing" (Count II); and that Hartford has acted in bad faith (Count III). Hartford's motion for partial summary judgment only addresses the breach of contract claim.
Fed. R. Civ. P. 56(c) provides that if "there is no genuine issue as to any material fact", "the moving party is entitled to judgment as a matter of law." The moving party bears the burden of showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party sustains its burden, the non-moving party must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992). The "non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact," Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508, 511 (3d Cir. 1994), or replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. In assessing whether the non-moving party has met its burden, the court must focus on both the genuineness and the materiality of the factual issues raised by the non-movant. An issue is "genuine" only if there is sufficient evidence from which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. at 248. A factual dispute is only "material" if it might affect the outcome of the case. See id. A dispute over irrelevant or unnecessary facts will not preclude summary judgment. Id.
When considering a motion for summary judgment, the court must draw inferences in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. See id. at 255. The court may not make credibility determinations or weigh the evidence. Id. at 252. If the record thus construed could not lead the trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Defendant's motion for partial summary judgment raises two issues. First, was Kraft an "employee" of Omne as the term is defined in the Crime Policy. Second, was there more than one "occurrence" as that term is defined in the Crime Policy. This second question is important since the Crime Policy pays no more than $ ...