United States District Court, D. New Jersey
CAROL MONTAGANO, as legal guardian and on behalf of WENDY GIANO, Plaintiff,
SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
L. COOPER United States District Judge.
Giano is an incapacitated adult, who is forty-one years old.
(Dkt. 5 at 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.)
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.
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.)
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.
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.
Giano's Accident and Care
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.)
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
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.)
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
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.)
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.)
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.)
Insurance Policy and Life Care Plan
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.)
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, 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.)
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).) Montagano has “faced numerous
challenges in dealing with Safeco, ...