MONTAGANO et al v. SAFECO INSURANCE COMPANY OF AMERICA

Filing 13

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 7/7/2017. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAROL MONTAGANO,
as legal guardian and on behalf of
WENDY GIANO,

:
:
:
:
Plaintiff,
:
:
v.
:
:
SAFECO INSURANCE COMPANY
:
OF AMERICA,
:
:
Defendant.
:
__________________________________ :

CIVIL ACTION NO. 16-9375 (MLC)
MEMORANDUM OPINION

COOPER, 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

1

We will cite to the documents filed on the Electronic Case Filing System (“ECF”) by the designation
of “dkt.” Pincites reference ECF pagination.

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
2

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
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“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
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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
Law2, 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,” specifically that Safeco has failed to timely respond to and
authorize claims submitted. (Id. at 12–17.)
2

The Policy is governed by the New Jersey’s Automobile Reparation Reform Act, N.J.S.A. 39:6A-1
et seq., (New Jersey No Fault Law), as it was in effect at the time of the accident. (Dkt. 5 at 4.)
Safeco agrees that the Policy is covered by the law as it existed in New Jersey at the time of the
accident. (Dkt. 7 at 6, 8.)
3

As Safeco’s motion to partially dismiss is limited solely to the proposed Life Care Plan, we limit our
discussion to that and do not go into detail regarding the other services provided to, and sought for,
Giano.

5

In 2008, the Montaganos retained Robert Voogt, Ph.D., C.R.C., to prepare the Life
Care Plan for Giano. (Id. at 16; id. at 23–37.) The Montaganos sought to implement a Life
Care Plan to coordinate with Safeco to provide for Giano’s care when they were no longer
available to care for Giano themselves. (Id. at 16.) The Life Care Plan “sets forth [Giano]’s
medically required needs for medical evaluation and treatment, therapeutic evaluation
treatment programs, maintenance, equipment for activities of daily living, medication, and
other expenses for the rest of [Giano]’s expected life.” (Id.) Giano’s life expectancy “is still
into her eighties” and it is anticipated that she will live for another forty years and require
continual care and assistance. (Id. at 17.)
To fund the Life Care Plan, the Montaganos must purchase an annuity or related
financial product to pay the expenses within the Life Care Plan for the remainder of Giano’s
life. (Id. at 17.) Safeco has declined to engage with the Montaganos in any discussion to
implement the Life Care Plan, to purchase an annuity, or to plan with the Montaganos the
future of Giano’s care. (Id.)
Montagano alleges that it is in Giano’s best interests and medically necessary to
remain living in her current home after her mother and step-father are no longer able to care
for her. (Id.) Montagano alleges that it is in Giano’s best interest and medically necessary
that Safeco fully funds the Life Care Plan now, “to assure Montagano and her step-father that
Giano’s care will be provided and paid for after they are gone.” (Id.) Without her “constant
prodding of Safeco and hiring an attorney to represent her,” Montagano believes that Safeco
would “continue to delay and not provide the reasonable and necessary medical care for
[Giao] as provided for in the Life Care Plan.” (Id.) Montagano alleges that it is in Giano’s
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best interest that either she or Giano’s future guardian “be able to provide for and pay directly
for her medical needs in the future from the Life Care Plan rather than deal with the
outrageous conduct of Safeco and its failure to timely respond to the legitimate, reasonable
and necessary medical requirements of [Giano].” (Id.) Montagano believes that Giano has
been left vulnerable to potential physical injuries in the future because of Safeco’s failure to
fund the Life Care Plan and pay for Giano’s reasonable and necessary medical care. (Id. at
18.)
II.

Legal Standard
A.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for
failure to state a claim upon which relief can be granted. When evaluating a motion to
dismiss, a court must accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief. See Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009). In other words, a complaint survives a motion to dismiss if it
contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In evaluating the sufficiency of a plaintiff’s factual pleadings, a court must take three
steps:
First, the court must take note of the elements a plaintiff must
plead to state a claim. Second, the court should identify
allegations that, because they are no more than conclusions, are
not entitled to the assumption of truth. Finally, where there are
well-pleaded factual allegations, a court should assume their
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veracity and then determine whether they plausibly give rise to
an entitlement for relief.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citations and quotation
marks omitted). However, “a court need not credit a plaintiff’s ‘bald assertions’ or ‘legal
conclusions’ when deciding a motion to dismiss.” Sands v. McCormick, 502 F.3d 263, 268
(3d Cir. 2007) (quotation omitted).
B.

New Jersey No Fault Law

This matter is governed by the New Jersey’s Automobile Reparation Reform Act,
N.J.S.A. 39:6A-1, et seq., (New Jersey No Fault Law), as it was in effect at the time of the
accident in 1975. At that time, the statute required that “[e]very automobile liability insurance
policy insuring an automobile as defined in this act against loss resulting from liability
imposed by law for bodily injury, death and property damage sustained by any person arising
out of ownership, operation, maintenance or use of an automobile shall provide additional
coverage.” L. 1972, c. 203, § 3, at p. 782, codified at N.J.S.A. 39:6A-4. The statute defined
“additional coverage” to include “medical expense benefits,” which required “[p]ayment of
all reasonable medical expenses incurred as a result of personal injury sustained in an
automobile accident.” L. 1972, c. 203, § 3, at p. 782, codified at N.J.S.A. 39:6A-4(a).4
The New Jersey Legislature has directed that the “act shall be liberally construed so as
to effect the purpose thereof.” N.J.S.A. 39:6A-16. The New Jersey courts have likewise
applied the statute broadly. “The No Fault Act is social legislation intended to provide
4

The New Jersey Legislature amended N.J.S.A. 39:6A-4(a) in 1990 as part of a general reform of the
No Fault Law, and removed the word “incurred” from the statute. L. 1990, c. 8, § 4, at p. 27–28;
Curts v. A. Mut. Ins. Co., 587 A.2d 1283, 1286 (N.J. Super. App. Div. 1991). The Legislature did not
provide an explanation for this specific change.

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insureds with the prompt payment of medical bills, lost wages and other such expenses
without making them await the outcome of protracted litigation. Mandated as a social
necessity, PIP coverage should be given the broadest application consistent with the statutory
language.” Amiano v. Ohio Casualty Ins. Co., 424 A.2d 1179, 1181 (1981). The statute must
thus be construed liberally, and “the statutory language must be read, whenever possible, to
promote prompt payment to all injured persons for all of their losses.” Gambino v. Royal
Globe Ins. Cos., 429 A.2d 1039, 1043 (1981).
III.

Analysis
A.

Breach of Contract (Count One)

Safeco has moved to partially dismiss Montagano’s breach of contract claim, arguing
that it is not required to cover the proposed Life Care Plan under New Jersey law. (Dkt. 7 at
8–11.) Specifically, Safeco argues that because Montagano seeks “unknown but anticipated
future treatment” for Giano, the care does not qualify as a “reasonable medical expense
incurred.” (Id. at 8; dkt. 11 at 2.)
Montagano responds that we must construe the statute broadly and in favor of the
insured. (Dkt. 10-2 at 10.) She contends that she has sufficiently alleged at this stage that Dr.
Voogt’s Life Care Plan is a “reasonable medical expense,” and that the ultimate determination
of reasonableness is for the fact finder. (Id. at 12–13.) She further argues that she has
incurred the cost of Giano’s Life Care Plan, and that the statute does not require medical
treatment to first be received before the insurer becomes liable for coverage. (Id. at 16–17.)
Safeco has moved to partially dismiss the breach of contract claim solely on the
grounds that it is not required to provide coverage for the Life Care Plan as a matter of New
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Jersey law. But we read Count One of the Amended Complaint to be more than a mere
allegation of denial of insurance coverage. We are thus hesitant to parse the breach of
contract claim as Safeco requests. Montagano has alleged that Safeco has failed to discuss the
funding of annuity or Giano’s future care plans. These claims are tied into the overall breach
of contract claim as part of the larger alleged pattern of conduct.
Count One of the Amended Complaint alleges that Safeco breached the contract in
part by engaging in a pattern of conduct for years of wrongful delays and denials of coverage.
Mrs. Montagano alleged that “Safeco has repeatedly breached the Policy by failing to timely
respond to and fulfill claims submitted by Mrs. Montagano on behalf of [Giano] for [Giano]’s
reasonable and necessary medical expenses.” (Dkt. 5 at 18.) The Amended Complaint
contains multiple specific allegations of delays and denials by Safeco of requested services
and treatments. (Id. at 12–16.) This includes Safeco’s failure to “engage in meaningful
discussions with the Montaganos about [Giano]’s care into the future.” (Id. at 18.)
The potential relief available for an alleged breach of contract is varied, including
damages in the form of an annuity.5 Montagano has sufficiently claimed that funding an
annuity is plausible relief as damages for the alleged repeated acts of Safeco failing to provide
required services and treatments. We do not decide whether coverage of the proposed Life
Care Plan for forty years is required under the Policy or New Jersey law. Rather, we find that
seeking damages in the form of an annuity is appropriate relief for a breach of contract, and at
this early juncture of the litigation, we will not limit the available remedies for the alleged

5

Although annuities are frequently used as part of structured settlements, they are also an available
remedy as part of a judgment.

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breach. See, e.g., Hatteras Press, Inc. v. Avanti Computer Sys. Ltd., No. 16-cv-5420, 2017
WL 2838349, at *6 (D.N.J. June 30, 2017); Gold Cross Safety Corp., Inc. v. PHH Veh. Mgt.,
No. 07-cv-2401, 2008 WL 2625357, at *7 (D.N.J. June 27, 2008).6
Therefore, we will deny Safeco’s motion to partially dismiss Count One.
B.

Declaratory Judgment (Count Two)

In Count Two of the Amended Complaint, Montagano seeks a declaratory judgment,
under 28 U.S.C. §§ 2201–2202, that “Safeco must provide [Giano] with all of the products,
services, and accommodations set forth in the Life Care Plan.” (Dkt. 5 at 20.)
Safeco has moved to dismiss this claim for declaratory relief. Safeco argues that New
Jersey law does not require it to fund and pay for the Life Care Plan because none of the
treatments or services have occurred. (Dkt. 7 at 11–12.) Safeco also argues that the Life Care
Plan is “a future and a speculative right” and we cannot grant declaratory relief because “[a]ny
judgment would not finalize the controversy between the parties or offer relief from
uncertainty.” (Id. at 12.) Montagano responds that the declaratory relief she seeks—to
declare that Safeco must provide Giano with the services set forth in the Life Care Plan—is
ripe for determination. (Dkt. 10-2 at 17–23.)
The New Jersey No Fault Law does not foreclose liability because the medical benefits
have not yet been provided. New Jersey courts have acknowledged that the statute permits an
6

While Safeco also asks us to strike the parts of the Amended Complaint related to the Life Care Plan,
it has not filed a formal motion to strike pursuant to Rule 12(f). Striking part of a complaint is a
“drastic remedy” and motions to strike are “not favored and usually will be denied unless the
allegations have no possible relation to the controversy and may cause prejudice to one of the parties,
or if the allegations confuse the issues.” Tonka Corp. v. Rose Art Indus., 836 F. Supp. 200, 217
(D.N.J. 1993) (quotations omitted). Because Safeco has not formally moved to strike, nor otherwise
satisfied the requirements of such a motion, we will not strike any part of Count One of the Amended
Complaint.

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indefiniteness in future benefits that an injured person may receive. See, e.g., Zupo, 474 A.2d
at 264 (referring to the “indefinite period of time” and “indefinite future” when insurer would
still be held liable for the medical expenses of the injured person). “[O]nce payment is
determined to be due, the statute does not place any time limitations on the payment of future
benefits.” Ochs v. Federal Ins. Co., 447 A.2d 163, 166 (1982) (emphasis added).
“Consequently, when a carrier acknowledges its responsibility for medical expenses by the
unambiguous act of making payment, it is also necessarily assuming the responsibility to
continue to make future payments for an indefinite period of time provided only that the
claimed medical expenses are related to and are necessitated by the original occurrence.”
Zupo, 474 A.2d at 263. As such, we reject Safeco’s argument that funding for unreceived
services and treatments listed cannot be the subject of declaratory relief under New Jersey
law.
We turn next to whether there is an actual controversy presented that would warrant
declaratory relief. The Declaratory Judgment Act provides: “In a case of actual controversy
within its jurisdiction . . . any court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought. Any such declaration shall
have the force and effect of a final judgment or decree and shall be reviewable as such.” 28
U.S.C. § 2201(a).
The Supreme Court has explained that “[t]he difference between an abstract question
and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of
degree, and it would be difficult, if it would be possible, to fashion a precise test for
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determining in every case whether there is such a controversy.” Maryland Casualty Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). In analyzing whether a controversy exists
within the meaning of the statute, a court must consider “whether the facts alleged, under all
the circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” Id. If the facts alleged do not create a case or controversy, they are
not ripe for consideration by a federal court. Fed. Kemper Ins. Co v. Rauscher, 807 F.2d 345,
350 (3d Cir. 1986).
Declaratory judgment actions must be “ripe” for resolution, meaning that the party
bringing the action has done so at the right time. Travelers Ins. Co. v. Obusek, 72 F.3d 1148,
1154 (3d Cir. 1995). Although the parameters of ripeness are difficult to define in a
declaratory judgment action because “declaratory judgments are, of necessity, rendered before
an ‘accomplished’ injury has been suffered,” the Third Circuit has specified three factors to
assist courts in determining whether a declaratory judgment is ripe for resolution. Id. For a
matter to be ripe, “(1) the parties must have adverse legal interests; (2) the facts must be
sufficiently concrete to allow for a conclusive legal judgment, and (3) the judgment must be
useful to the parties.” Surrick v. Killion, 449 F.3d 520, 527 (3d Cir. 2006).
The first factor, adversity of the interest, requires the court to find “a substantial threat
of real harm and that the threat must remain real and immediate throughout the course of the
litigation.” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463
(3d Cir. 1994). To satisfy this factor, the party seeking the declaratory judgment need not
have “suffered a completed harm.” Surrick, 449 F.3d at 527 (emphasis added).
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The second factor, conclusiveness, addresses “whether the parties’ rights will be
definitively decided by a declaratory judgment.” Step-Saver Data Sys., Inc. v. Wyse Tech.,
912 F.2d 643, 649 n.9 (3d Cir. 1990). The test for conclusiveness requires the court to
determine whether “judicial action at the present time would amount to more than an advisory
opinion based on a hypothetical set of facts.” Presbytery, 40 F.3d at 1468. The “conflict
between the parties . . . cannot be ‘nebulous or contingent,’” but rather, it “‘must have taken
on fixed and final shape so that a court can see what legal issues it is deciding.’” Wyatt,
Virgin Islands, Inc. v. Gov’t of the Virgin Islands, 385 F.3d 801, 806 (3d Cir. 2004) (quoting
Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 244 (1952)).
The third factor, usefulness, requires the court to consider “whether the parties’ plans
of actions are likely to be affected by a declaratory judgment.” Presbytery, 40 F.3d at 1469
(citing Step-Saver Data Sys., 912 F.2d at 649 n.9). The judgment must provide “practical
help” or “utility.” Step-Saver Data Sys., 912 F.2d at 647. The purpose of the Declaratory
Judgment Act was to “clarify legal relationships so that [parties] could make responsible
decisions about the future.” Travelers Ins. Co., 72 F.3d at 1155. Thus, we must assess
“whether a declaratory judgment will affect the parties’ plans of actions by alleviating legal
uncertainty.” Surrick, 449 F.3d at 529.7
Having considered these three factors, we find that Montagano has sufficiently alleged
that there is an actual controversy presented that could warrant declaratory relief.

7

In an insurance coverage dispute, the second and third prongs of the ripeness test are closely related.
Travelers Ins. Co., 72 F.3d at 1155.

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First, the parties’ interests are adverse. Montagano claims that she is entitled to
coverage for the Life Care Plan, and Safeco disagrees that it is required to fund the Life Care
Plan. The Third Circuit has previously held that a dispute between an insured and insurer
regarding the insurer’s obligation to provide coverage is “a very real and immediate adversity
of interests.” Travelers Ins. Co., 72 F.3d at 1155. The coverage dispute between Montagano
and Safeco, likewise, presents an immediate adversity of interests. Montagano does not need
to have already paid for Giano’s Life Care Plan to establish this factor, nor does Giano need to
have begun receiving the care. See Surrick, 449 F.3d at 527. It is sufficient to allege that
Giano immediately needs the Life Care Plan to fund the services outlined by Dr. Voogt, and
for Safeco to contest that.
Second, a declaratory judgment would resolve the rights of the parties. Montagano
has not alleged hypothetical facts; rather, she has provided an evaluation from Dr. Voogt
detailing the services that Giano needs and providing a cost for those services. (Dkt. 5 at 23–
37.) Montagano has claimed that “[a] declaration will conclusively establish [her] right to
receive payment for [Giano’s] care.” See Travelers Ins. Co., 72 F.3d at 1155. In a similar
case regarding insurance coverage, the Third Circuit has explained that a declaratory
judgment action would resolve the rights of the parties because an insured “ought not to have
to risk incurring the financial obligation of such care before knowing if [the insurer] is
obligated to pay for it.” See id. We apply that rationale here.
Third, a declaratory judgment would be useful to the parties. A declaratory judgment
would establish whether Safeco must provide coverage and fund the Life Care Plan.
Montagano has alleged that if Safeco will cover the Life Care Plan, she will proceed with it.
15

Removing the uncertainty would allow Montagano to “make responsible decisions about the
future” and either proceed or not proceed with the Life Care Plan. See id. at 1155–56 (“[The
insured] should not have to blindly take the step of incurring an expense that [the insurer] may
be legally obligated to assume before being told if she has stepped in a hole.”).
We find that Montagano has sufficiently alleged facts indicating the ripeness of the
declaratory judgment action. We will therefore deny Safeco’s motion to partially dismiss
Montagano’s declaratory judgment claim, Count Two.
CONCLUSION
For the reasons stated, we deny Safeco’s motion to partially dismiss the Amended
Complaint.
We will enter an appropriate order.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Dated: July 7, 2017

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