Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montagano v. Safeco Insurance Co. of America

United States District Court, D. New Jersey

July 7, 2017

CAROL MONTAGANO, as legal guardian and on behalf of WENDY GIANO, Plaintiff,
v.
SAFECO INSURANCE COMPANY OF AMERICA, Defendant.

          MEMORANDUM OPINION

          MARY L. COOPER United States District Judge.

         Wendy Giano is an incapacitated adult, who is forty-one years old. (Dkt. 5 at 1.)[1]Plaintiff Carol Montagano is Giano's mother and was appointed legal guardian of Giano in April of 2000. (Id.) Montagano, who is seventy-three years old, has been Giano's primary care giver since her daughter was injured in a 1975 motor vehicle accident. (Id. at 3, 8.)

         Montagano brings this suit, in her capacity as legal guardian for Giano, against Defendant Safeco Insurance Company of America (“Safeco”). She argues that Safeco breached their insurance policy contract because it has failed to provide the agreed upon coverage for Giano's injuries sustained in the 1975 accident (Count One). (Id. at 18-19.) Montagano also seeks a declaratory judgment setting forth Safeco's obligations under the insurance policy (Count Two). (Id. at 19-21.) Under both counts, Montagano contends that Safeco has a duty to fund and implement a Life Care Plan for Giano-which it has failed to do. (Id. at 18-22.)

         Safeco has filed a motion to partially dismiss Montagano's claims. (Dkt. 7.) Safeco has moved to dismiss the breach of contract claim to the extent that it focuses on the Life Care Plan, which, according to Safeco, it does not have to fund as a matter of law because the plan is not a qualifying “reasonable medical expense” and the care described within is speculative and has not been “incurred” within the meaning of N.J.S.A. 39:6A-4. (Id. at 8-11.) Safeco also contends that the declaratory judgment claim must be dismissed with respect to the Life Care Plan because declaratory relief would be premature and would not finalize any controversy between the parties. (Id. at 11-12.)

         We have considered the filings and will resolve the matter without oral argument. See L.Civ.R. 78.1(b). For the following reasons, we will deny the motion to partially dismiss the Amended Complaint.

         I. Background

         We glean the following background from the allegations in the Amended Complaint, which we accept as true at this stage in the pleadings. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We limit our discussion of the facts to those relevant to the motion to dismiss.

         A. Giano's Accident and Care

         On June 7, 1975, when she was three and one-half months old, Giano was involved in a motor vehicle accident. (Dkt. 5 at 3.) Giano's father, Louis Giano, was driving the motor vehicle when he was struck head-on by another driver. (Id.) Mr. Giano was killed in the accident. (Id.) Montagano, Giano, and three of Giano's siblings were severely injured. (Id.) Despite her injuries, Montagano began caring for her four children after the accident. (Id. at 3, 5-8.)

         Giano suffered a massive traumatic brain injury because the crank handle on the vehicle window penetrated her skull. (Id. at 3.) Initially, Giano began having “strange jerking and twitching motions, ” which were diagnosed as seizures caused by the accident. (Id. at 3- 4.) She was prescribed medications to control the seizures but the medications were not successful. (Id. at 4.) Over time, her condition deteriorated, and Giano was “no longer achieving developmental milestones.” (Id. at 3.) Her vision became “extremely limited” within months after the accident. (Id.)

         Today, Giano has the cognitive function and abilities of a three-year old. (Id. at 3.) She can only verbalize simple requests for items that she needs or wants. (Id. at 9.) She remains “visually impaired, has right hemiparesis and weakness in all extremities, is subject to behavioral problems and phobias, and is intermittently incontinent.” (Id. at 3.) Her phobias include open spaces, water, and doctors' and dentists' offices. (Id. at 9.) Giano has difficulty eating due to decay in her teeth caused by taking anti-seizure medication for nearly forty years; she has had multiple teeth extracted as a result. (Id. at 10.) Any type of dental appointment or blood test requires hospitalization and sedation. (Id.)

         Giano also has difficulty moving around. (Id. at 9.) She requires assistance using the bathroom. (Id. at 11.) Because of weakness on her right side, Giano's gait has become uneven recently. (Id. at 10.) She has difficulty walking up and down steps. (Id.) She also requires a step stool to enter the family van. (Id.) Recently, her right arm has become “frozen” due to lack of use. (Id.) Giano's neurologist has reported that the brain injury will not improve, and the condition of her right side will continue to worsen over time. (Id.)

         Giano's skin must be “kept warm and moist at all times, ” because she has an extreme sensitivity to cold and cannot maintain her body temperature. (Id. at 9, 11.) As a result, an indoor pool and room were deemed medically necessary for Giano's care and she swims almost every day (with the use of a life jacket and under supervision from her mother) because the water's moist heat helps keep her skin pliable, allowing Giano to exercise without exerting too much stress on her legs. (Id. at 10.)

         Montagano has been the primary caregiver for her daughter and spends the majority of her day dedicated to Giano's care from approximately 5 a.m., when Giano wakes, until 8:30 p.m., when Giano goes to sleep. (Id. at 8, 11.) Montagano's daily activities include “assisting Giano with dressing, bathing, toileting, and all other activities of daily living.” (Id. at 8.) Every morning, Montagano cleans and dresses Giano, prepares her breakfast, and administers her medication to her. (Id. at 11.) When Giano uses the pool, Montagano must be present to supervise. (Id. at 10.)

         Giano is not eligible for state-sponsored housing because she does not qualify under the financial needs test, and she is not eligible for state-sponsored medical services because she does not qualify under Medicaid. (Id. at 9.) Because there are no facilities appropriate for Giano and her care in the New Jersey area, Montagano's home has become Giano's facility. (Id.) Since 2008, Giano has attended an adult day care program a few days each week at Seacrest Village. (Id. at 8.) Safeco approved a registered nurse to provide part-time assistance for Giano's care. (Id. at 11.) Additionally, beginning in 2014, Giano's sister began to care for Giano and to allow Giano to stay overnight at her home once or twice per week to provide a break for Montagano. (Id. at 12.)

         B. Insurance Policy and Life Care Plan

         At the time of the 1975 accident, Giano's parents had an insurance policy (“the Policy”) for motor vehicle coverage with Ohio Casualty Group. (Id. at 4.) Giano was an insured under the Policy. (Id.) Ohio Casualty Group, pursuant to the Policy, would provide first party insurance coverage to Giano and her family. (Id.)

         Beginning in 2008, Safeco assumed all obligation and responsibilities under the Policy for handing Giano's insurance claims. (Id. at 2, 5.) According to the Policy and New Jersey Law[2], Ohio Casualty Group, and now Safeco, were “required to pay for all reasonable and necessary medical expenses resulting from the personal injuries that Giano sustained in the motor vehicle accident during her lifetime.” (Id. at 5.)

         Since the motor vehicle accident, Ohio Casualty Group, and later Safeco, have provided financial assistance for some claims but have not provided financial assistance for other claims. (See generally id. at 5-8 (discussing reimbursement by Ohio Casualty Group); id. at 12-16 (discussing reimbursement by Safeco).)[3] Montagano has “faced numerous challenges in dealing with Safeco, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.