1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-1995

Travelers Ins. Co. v. Obusek

Precedential or Non-Precedential:

Docket 94-3666

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Recommended Citation

"Travelers Ins. Co. v. Obusek" (1995). 1995 Decisions. Paper 328.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-3666 

 

TRAVELERS INSURANCE COMPANY 

 Appellant 

v. 

LISA ANN OBUSEK 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

 

(Civil No. 88-1913) 

Argued June 12, 1995 

Before: STAPLETON, McKEE, Circuit Judges, 

and SEITZ, Senior Circuit Judge

(Opinion filed: December 29, l995) 

 

 A. Richard Feldman, Esquire (Argued) 

 Jennifer L. Hoagland, Esquire 

 BAZELON & LESS 

 1515 Market Street, 7th Floor 

 Philadelphia, PA 19102-1907 

 Cheryl Esposito, Esquire 

 MARSHALL, DENNEHEY, WARNER, 

 COLEMAN & GOGGIN 

 USX Tower, 600 Grant Street 

 Pittsburgh, PA 15264 

 

 Attorneys for Appellant

 Edward G. Shoemaker, Esquire (ARGUED) 

 408 Grant Building 
2 

 Pittsburgh, PA 15219 

 

 Attorney for Appellee

 

 

OPINION OF THE COURT 

 

McKEE, Circuit Judge

 We are asked to decide if attendant care services are an 

"allowable expense" under Section 103 of the Pennsylvania NoFault Motor Vehicle Insurance Act, 40 Pa. Con. Stats. Ann. 

§1009.103 (repealed) ("No-Fault Act") when provided by 

accredited, non-family, medical care providers.0 We must also 

decide if, under the circumstances of this case, this question is 

ripe for adjudication. 

 For the reasons that follow, we answer both inquiries in the 

affirmative. While we thus agree with the district court’s 

disposition of the two primary issues before it, we also conclude 

that the district court’s judgment fails to clearly adjudicate 

the issues that the parties are entitled to have resolved. We 

will therefore reverse the district court’s judgment and will 

 

0The No-Fault Act, 40 Pa. Con. Stats. Ann. § 1009.101 et seq., 

was repealed on October 1, 1984, by the Motor Vehicle Financial 

Responsibility Law, 75 Pa. Con. Stats. Ann. § 1701 et seq. 

However, the terms of the No-Fault Act control the obligations of 

insurers of victims of serious accidents which occurred while the 

Act was in effect and who still suffer from injuries received in 

those accidents. Drake v. Pennsylvania National Mutual Casualty 

Ins. Co., 601 A.2d 797, 798 (Pa. 1992). 
3 

remand for further findings of fact and the entry of an 

unambiguous judgment. 

I. FACTUAL BACKGROUND

 On October 19, 1979, at the age of 18, Lisa Ann Obusek 

suffered a severe spinal cord injury while riding as a passenger 

in an uninsured motor vehicle.0 Lisa's spinal cord was severed 

at approximately the C5-C6 level causing her irreversible 

neurological injury. She was initially treated at Mercy Hospital 

and later transferred to St. Francis General Hospital in 

Pittsburgh, Pennsylvania, where she underwent a rehabilitation 

program. She was eventually discharged from St. Francis, and has 

been living at home with her parents ever since. 

 Lisa can move her head and neck but has no use of her legs 

and only limited movement of her arms. She has no grip in her 

hands but is able to feed herself when equipped with a cuff and 

splint. She has no control over her bowels or bladder and 

urinates through a catheter. Her disabilities are potentially 

life-threatening if not properly managed. Lisa's speech and 

intellectual capacities were not affected by the accident. 

A. Required Care

 In a medical report dated September 21, 1989, James McCague, 

M.D., set forth the extent of Lisa's physical limitations, and 

noted that those limitations impaired her respiratory functions 

thereby making her susceptible to choking. The report concluded 

that this, along with her susceptibility to life threatening 

 

0In order to avoid confusion between Lisa Ann Obusek and her 

mother, we will refer to Lisa Ann as "Lisa". 
4 

infection from bed sores, meant that she needed frequent 

monitoring and inspection. 

 In July of 1988, Erie Independence House, ("EIH")0

performed a Health Care Evaluation of Lisa to determine what 

products, services and accommodations she needed to achieve 

maximum feasible physical, psychological, social and vocational 

rehabilitation. The resulting Report was based upon a five day 

evaluation at EIH, a review of Lisa's medical records, and an onsite evaluation of her home. The EIH Evaluation made specific 

recommendations as to those things EIH felt essential for Lisa's 

rehabilitation and care, including functional equipment, housing 

modification and adaptations, psychological counseling, physical 

therapy and attendant care services. The services and 

accommodations EIH recommended included a regimen of specific 

exercises and hygiene. It also recommended that "Miss Obusek 

should . . .receive Attendant Care for all activities of daily 

living." EIH Evaluation at 7. EIH defined attendant care 

services as including, but not limited to, "bowel routines; 

bladder routines; bathing; dressing; weight shifts; transfers; 

hygiene care; range of motion; house cleaning; exercise routines; 

leisure time activities; and wheelchair maintenance, etc." Id.

EIH recommended that the attendant care services be provided on a 

twenty-four hour a day basis. Id. EIH also recommended that 

Lisa: 

1. [r]eceive 68.67 hours weekly . . . of 

direct personal care assistance, with the 

understanding that more hours may be 

necessary if she should become ill. 

2. [r]eceive 21.64 hours of ancillary 

assistance weekly, to maintain her living 

environment. 

3. [h]ave an attendant available to her for 

the remaining 77.69 hours weekly, after 

personal care and ancillary services are 

completed. These hours are necessary to 

avoid problems, and give assistance 

throughout the week should problems, based on 

her physical disability occur. 

Id. at 6. 

 

0Erie Independence House is a facility which offers attendant 

care and support services to physically disabled, 

mentally alert people. 
5 

 EIH defines an attendant or personal assistant as a person 

"who facilitates physical or social independency (sic) by doing 

chores required by the disabled person." Id. at Attachment #10, 

p. 100, quoting GEORGE NELSON WRIGHT, PH.D., TOTAL REHABILITATION at 74 

(1st Ed. 1980). An attendant "is a paid employee who provides 

regular, in-home personal care. . . . An attendant is often the 

most important person in the life of a disabled individual. 

Attendant care. . . reduces the necessity of institutionalizing 

disabled persons." Id. at 101, quoting TOTAL REHABILITATION at 746-

747.0 

 Staff members of EIH testified that the daily attendant care 

of quadriplegics can be, and usually is, provided by unskilled 

lay persons. The only requirements for the job are a high school 

diploma, a driver's license and having attained the age of 18. In 

1989, EIH paid attendant care providers at the rate of $5.00 per 

hour. 

 Gilbert Brenes, M.D., Director of the Spinal Cord Injury 

Program at Harmarville Rehabilitation Center in Pittsburgh, and 

the rehabilitation expert hired by Travelers, examined Lisa and 

concluded that she did not require the services of a registered 

or licensed practical nurse to provide the attendant care she 

needs. He did, however, conclude that Lisa needed 16 hours a day 

of attendant care. Additionally, he recommended that a licensed 

 

0See also Pennsylvania Attendant Care Services Act, 65 Pa. Con. 

Stats. Ann. § 305 et seq. ("Attendant care services [are]. . 

.those basic and ancillary services which enable an eligible 

individual to live in his home and community rather than in an 

institution and to carry out functions of daily living, self-care 

and mobility. . . .") 
6 

practical nurse "be available to change the Foley catheter, to 

supervise the attendant care so that is done effectively or at 

any time that [Lisa] runs into respiratory, skin, autonomic or GU 

complications.' Joint Appendix at 473a. 

 Lisa's mother, Anna Rose Obusek, is a high school graduate 

who worked as a part-time bookkeeper before Lisa's accident. She 

is not a registered nurse or a licensed practical nurse and she 

does not have a license or certification in either medical or 

rehabilitative care. However, hospital staff advised Mrs. Obusek 

on Lisa's care in the months immediately following Lisa's 

accident, and Mrs. Obusek has provided the attendant care and 

services Lisa has needed to survive since then. This care 

includes preparation of meals; setting-up of eating utensils; 

cleaning-up after meals, assisting with drinking and taking 

medication; transferring Lisa between bed and wheelchair; 

dressing and undressing; assisting with Lisa's personal hygiene 

and grooming; changing, emptying and cleaning the urine bags; 

bowel stimulation; range-of-motion exercises; changing and 

sterilizing the Foley catheter; cleaning the bedroom; assisting 

in the use of exercise equipment; turning Lisa in bed at night; 

doing laundry; and providing maintenance of wheelchairs. 

 

B. Procedural History 

Neither Lisa, nor the driver of the car she was riding in 

had automobile insurance at the time of the accident. Therefore, 

Lisa filed an application for no-fault benefits with 

Pennsylvania's Assigned Claims Plan. The Assigned Claims Plan is 
7 

an entity created pursuant to section 108 of the No-Fault Act, 40 

Pa.C.S.A. § 1009.108, (repealed), to provide basic no-fault loss 

benefits to victims of motor vehicle accidents who have no other 

source of basic loss benefit coverage. The Plan initially 

assigned Lisa's claim to Allstate Insurance Company for 

evaluation and processing. Lisa requested coverage for all 

"products, services and accommodations" required for her "maximum 

feasible restoration/rehabilitation" pursuant to the No-Fault 

Act, including modifications to her parents' home, a modified van 

to allow for transportation, and 24 hour a day attendant care 

services. 

 Allstate initially denied Lisa's claim for basic loss 

benefits, and she responded by suing Allstate in the Court of 

Common Pleas of Allegheny County. Obusek v. Allstate Insurance 

Company, No. G.D. 79-27948 (C.P. Alleg. Cty. 1979). That matter 

was not litigated, however, because a settlement was reached 

whereby Allstate agreed to pay a variety of benefits, including 

the cost of building an addition to the Obusek home. Allstate 

also agreed to pay $40.20 per day for the 24 hour attendant care 

services provided by Mrs. Obusek and other family members. Those 

payments were to continue for 18 months and the parties where 

then to be free to negotiate further payments. 

 When the 18 month period expired in August of 1982, Allstate 

agreed to continue paying at an increased per diem rate of 

$45.79. The original agreement was extended in all other respects 

for an additional two years, until August 25, 1984. At the 

conclusion of that two year period, a third agreement was 
8 

negotiated wherein the per diem was increased to $125, or $45,625 

per year, for a period of four years -- until August 25, 1988. 

The third agreement also provided that upon its expiration, the 

parties would each: 

have the right to request an increase or 

decrease in these payments. . . . should the 

parties be unable to reach such an agreement, 

each party will have the right to seek to 

resolve this issue through appropriate 

litigation pursuant to the Pennsylvania NoFault Act. 

Allstate also agreed to continue to pay the $125 per day, 

augmented annually by the increase in the consumer price index in 

the event of litigation. 

 In January of 1987, the Plan assigned Lisa's claim to 

Travelers, and Travelers began making the attendant care services 

payments. As of August, 1988, the insurance companies had paid 

more than $239,800 to the Obuseks for the services provided by 

Lisa's mother. 

 On August 28, 1988 (after the third agreement expired) 

Travelers filed a declaratory judgment action under 28 U.S.C. 

§2201 in the United States District Court for the Western 

District of Pennsylvania, seeking a determination of whether 

Travelers was obligated to pay Lisa for attendant care services 

provided in her home by her mother. Travelers asserted three 

reasons why it believed such services were not compensable. 

 First, Travelers contended that Mrs. Obusek's services were 

not compensable because she was not a licensed health care 

provider. Section 103 of the No-Fault Act, 40 Pa.C.S.A. §1009.103 
9 

stated that the insurer is "not obligated to provide basic loss 

benefits for allowable expense for medical and vocational 

rehabilitation services" if the providers of the services are not 

accredited by the Department of Health of the Commonwealth of 

Pennsylvania. 

 Second, Travelers contended that the services being provided 

by Lisa's mother were custodial only, and not rehabilitative. 

Section 103 also required that compensable rehabilitative 

services "reduce disability and. . . restore the . . . 

functioning of the victim." 

 Third, Travelers contended that the services were 

replacement services and that Lisa had already been paid the 

maximum allowable amount for replacement services under the NoFault Act. Section 103 defines "replacement services" as 

"ordinary and necessary services in lieu of those the victim 

would have performed, not for income, but for the benefit of 

himself. . . if he had not been injured." The Act placed a cap 

on the amount of benefits payable for replacement services and 

that limit had been exceeded. 

 Lisa responded to Travelers' suit by filing a counterclaim 

in which she also requested declaratory relief. She asked the 

court to declare that: 

(1) TRAVELERS is obligated to pay LISA for 

attendant care provided by her family, 

pursuant to the terms of the AGREEMENT 

entered into between LISA and ALLSTATE on 

10/9/84; and that 

(2) The daily attendant care payments are to 

be based upon the fair market value of such 

services; and that 
10 

(3) TRAVELERS is to provide LISA with all the 

products, services and accommodations 

required for LISA's maximum rehabilitation --

and as set forth in the prior AGREEMENTS 

between LISA, ALLSTATE and the PLAN, and as 

stated in the attached EIH evaluation, and as 

otherwise may be required; 

(4) TRAVELERS is to pay LISA 18% 

penalty/delay interest as to all products, 

services and accommodations, or the fair 

value thereof, not provided by TRAVELERS --

pursuant to the Pennsylvania No-Fault Act; 

(5) TRAVELERS is to pay LISA for counsel fees 

and costs incurred by LISA because of this 

litigation and because of TRAVELERS' failure 

to provide, of (sic) fully pay for, required 

products, services and accommodations. 

Lisa also demanded four types of home improvements and 

approximately 30 pieces of equipment. 

 Travelers answered the counterclaim by admitting that it had 

not conducted a recent examination of Lisa and conceding that it 

therefore had no reports which refuted the recommendations 

contained in the EIH evaluation. However, Travelers did raise as 

a defense its contention that Lisa had never requested any of the 

products or services which the EIH evaluation recommended as 

necessary. Travelers therefore asserted that the issue of Lisa's 

entitlement to the services and accommodations recommended by EIH 

was not ripe for resolution. Additionally, Travelers contended 

that it had never been provided with a copy of the EIH evaluation 

until it was attached as an exhibit to the counterclaim. 

 After discovery was completed, the parties filed crossmotions for summary judgment. After some delay, the district 
11 

court assigned the case to a magistrate judge who issued her 

Report and Recommendation on May 11, 1993, recommending that 

Travelers' summary judgment motion be granted and Lisa's be 

denied. The magistrate judge based her recommendation on the 

fact that Lisa's mother was not a licensed health care provider. 

The magistrate judge reasoned that Travelers was therefore not 

obligated to pay for Mrs. Obusek's services under the No-Fault 

Act. Report and Recommendation at 7-8. However, the magistrate 

judge further concluded that Lisa's claims for home improvements 

and other equipment were not amenable to summary judgment. Id.

 The district court adopted the Report and Recommendation 

over the Obuseks' objections and Travelers stopped making monthly 

payments. Thereafter, on January 7, 1994, at a status 

conference, the parties reached a settlement on all of the home 

improvement and equipment claims contained in Lisa's 

counterclaim. That settlement was eventually reduced to writing 

and approved by the district court. 

 During that status conference the parties debated whether 

any issues remained outstanding for the court to decide. Lisa's 

counsel contended that the district court only decided that 

Travelers has no obligation to pay for attendant care services 

provided by Lisa's mother but did not decide whether Travelers 

had any obligation to pay for attendant care services that may be 

provided by a licensed caregiver. Travelers disagreed and argued 

that the summary judgment in its favor had resolved all of the 

issues in the case. 
12 

 Following briefing on this issue, the district court issued 

a Memorandum Opinion and Judgment Order dated October 14, 1994, 

in which it ruled that the issue of Travelers' obligation to pay 

for attendant care services, if provided by a licensed caregiver, was ripe for determination. The district court then 

granted summary judgment in Lisa's favor, and held that attendant 

care services, if "provided by accredited, non-family 

professional medical treatment and care providers" constitute 

"professional medical treatment and care" within the meaning of 

the No-Fault Act, and therefore, attendant care services are an 

"allowable expense" under the Act. Memorandum Opinion at 11. 

Travelers subsequent motion for reconsideration was denied, and 

this appeal followed. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291. 

II. Discussion

 Travelers submits that the only person providing daily care 

services to Lisa is her mother, and that there is nothing in the 

record which shows that Lisa has any plans or intentions to hire 

anyone else to provide those services in the near future. 

Additionally, Travelers contends that no one ever asked that it 

pay for attendant care services provided by an accredited caregiver. Travelers suggests that it is therefore entirely 

"speculative whether anyone other than Mrs. Obusek will ever 

provide attendant care services to her daughter." Brief of 

Appellant at 19. Accordingly, Travelers argues that the issue of 

its obligation to pay for attendant care services provided by a 

licensed care-giver is not ripe for resolution. 
13 

A. Ripeness

 The Declaratory Judgment Act provides, in relevant part, as 

follows: 

 § 2201. Creation of remedy 

 (a) 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). Of course, Article III, Section 2 of the 

Constitution of the United States "limits federal jurisdiction to 

actual 'cases' and 'controversies.'" Armstrong World Industries, 

Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992). This 

constitutional provision "stands as a direct prohibition on the 

issuance of advisory opinions." Id. The existence of a "case or 

controversy" is a condition precedent to the proper exercise of 

judicial power by a federal court and the Declaratory Judgment 

Act can not relax that constitutional requirement. Skelly Oil Co. 

v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). As the 

Supreme Court explained in Maryland Casualty Co. v. Pacific Coal 

& Oil Co.: 

The 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 not 

impossible, to fashion a precise test for 

determining in every case whether there is 

such a controversy. Basically, the question 

in each case is whether the facts alleged, 

under all the circumstances, show that there 
14 

is a substantial controversy, between parties 

having adverse legal interests, of sufficient 

immediacy and reality to warrant the issuance 

of a declaratory judgment. 

312 U.S. 270, 273 (1941). We have previously noted that: 

[t]o satisfy Article III's case or 

controversy requirement, an action must 

present (1) a legal controversy that is real 

and not hypothetical, (2) a legal controversy 

that affects an individual in a concrete 

manner so as to provide the factual predicate 

for reasoned adjudication, and (3) a legal 

controversy so as to sharpen the issues for 

judicial resolution. 

Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 411 

(3rd. 1992) (internal quotation marks omitted). As will be 

discussed in greater detail infra, as part of our inquiry into 

"ripeness", the instant controversy satisfies this requirement. 

 Federal jurisdiction is also limited by the doctrine of 

"ripeness". "Ripeness" "determines when a proper party may bring 

an action." Id. The function of the ripeness doctrine is to 

prevent federal courts "through avoidance of premature 

adjudication, from entangling themselves in abstract 

disagreements." Abbott Lab. v. Gardner, 387 U.S. 136, 148 

(1967). While we have noted that there is some disagreement as 

to whether the ripeness doctrine is grounded in the case or 

controversy requirement or is more properly viewed as a 

"prudential limitation on federal jurisdiction," we recognize 

that the doctrine is at least partially grounded in the case or 

controversy requirement. Armstrong World Industries, Inc., 961 

F.2d at 411 n. 12. 
15 

 The parameters of "ripeness" are especially difficult to 

define within the context of declaratory judgment actions. StepSaver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 646 

(3d Cir. 1990). This difficulty is due, in large measure, to the 

fact that declaratory judgments are, of necessity, rendered 

before an "accomplished" injury has been suffered. Id. at 647. 

Nonetheless, we have developed a method of analysis that focuses 

upon three factors to aid in determining if and when a 

declaratory judgment action is ripe. We examine the "adversity 

of the interest" between the parties to the action, the 

"conclusiveness" of the declaratory judgment and "the practical 

help, or utility" of the declaratory judgment. Id. If we are 

satisfied that all three elements are present, the declaratory 

judgment action is ripe. 

1. Adversity of Interests

 Parties' interests are adverse where harm will result if the 

declaratory judgment is not entered. Although the action cannot 

be based on a contingency, Id. at 647-648, the party seeking 

declaratory relief need not wait until the harm has actually 

occurred to bring the action. Armstrong World Industries, Inc. 

v. Adams, 961 F.2d at 412. Thus, in an appropriate circumstance, 

a litigant can seek a declaratory judgment where the harm is 

threatened in the future. However, the plaintiff must 

demonstrate that the probability of that future event occurring 

is real and substantial, "'of sufficient immediacy and reality to 

warrant the issuance of a declaratory judgment.'" Salvation Army 

v. Department of Community Affairs, 919 F.2d 183, 192 (3d Cir. 
16 

1990) (quoting Steffel v. Thompson, 415 U.S. 452, 460 (1974)). 

Accordingly, a party need not decide between attempting to meet 

the nearly insurmountable burden of establishing that the 

relevant injury is a mathematical certainty to occur, nor must a 

party await actual injury before filing suit. Erecting such 

barriers would eviscerate the Declaratory Judgment Act and render 

the relief it was intended to provide illusory. However, 

ripeness requires that the threat of future harm must remain 

"real and immediate" throughout the course of the litigation. Id.

(quoting Steffel v. Thompson, 415 U.S. 459 n. 10). 

 Here, Travelers has taken the position that attendant care 

services are custodial in nature and that it therefore has no 

obligation under the No-Fault Act to pay for those services. 

Lisa, of course, contends otherwise. There is, therefore, a very 

real and immediate adversity of interests. This adversity is not 

negated merely because Travelers' own expert agrees that 

attendant care services are an absolute necessity, and that Lisa 

cannot do without them. That consideration is, however, relevant 

to the eventual resolution of the adversity of interests. 

2. Conclusiveness

 The declaratory judgment must also be conclusive. That is, 

the legal status of the parties must be changed or clarified by 

the declaration. Step-Saver Data Systems, Inc. v. Wyse 

Technology, 912 F.2d at 648. This portion of the analysis is 

part and parcel of the constitutionally mandated inquiry into the 

existence of a case or controversy. The "contest must be based 

on a 'real and substantial controversy admitting of specific 
17 

relief through a decree of a conclusive character, as 

distinguished from an opinion advising what the law would be upon 

a hypothetical state of facts.'" Id. at 649 (quoting Aetna Life 

Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)). An integral part 

of the conclusiveness inquiry is the necessity that the court be 

presented with a set of facts from which it can make findings. 

Without a concrete set of facts, the court cannot engage in its 

required fact-finding role and declare the parties' rights based 

on those facts. Without the necessary facts, the court is left 

to render an advisory opinion. Id.; Armstrong World Industries, 

Inc., F.2d at 412. 

 Nonetheless, there are situations where the need for 

complete factual development is not absolutely essential. For 

instance, where the question presented is "predominately legal", 

such as a question of federal preemption, a factual record is not 

as crucial as in a case where the question is whether there has 

been an unconstitutional taking of private property. Armstrong 

World Industries, Inc., at 412. There are also situations where 

a declaratory judgment can be issued absent proof of a necessary 

fact. For example, if a future event is "certain to occur, such 

as enforcement of an existing statute or the death of a lifetenant or the future expiration of a contract, franchise or 

lease”, a judgment declaring rights is appropriate." Step-Saver 

Data Systems, Inc., 912 F.2d at 649 n. 7 (quoting EDWIN BORCHARD,

DECLARATORY JUDGMENTS at 37-38 (2d Ed. 1941). 

 The conclusiveness of resolution of the instant controversy 

is closely related to the utility of resolving it. A declaration 
18 

will conclusively establish Lisa's right to receive payment for 

attendant care if that care is given by an appropriate health 

care professional. Lisa ought not to have to risk incurring the 

financial obligation of such care before knowing if Travelers is 

obligated to pay for it, and the question is primarily a legal 

one involving interpretation of the applicable legislation. 

3. Utility

 Finally, the declaratory judgment must have utility. It 

must be of some practical help to the parties. The Declaratory 

Judgments Act was enacted "to clarify legal relationships so that 

plaintiffs (and possibly defendants) could make responsible 

decisions about the future." Step-Saver, at 650. 

The idea behind the Act was to clarify legal 

relationships so that [parties] cold make 

responsible decisions about the future. As 

Congressman Gilbert remarked in debate, 

'[u]nder the present [pre-Declaratory 

Judgment Act] law, you take a step in the 

dark and then turn on the light to see if you 

have stepped in a hole. Under the 

declaratory judgment law you turn on the 

light and then take the step.' 

Id. at 649-50. 

 Contrary to Travelers’ suggestion, we think that the record, 

at least implicitly, reflects that, if her mother’s services are 

not compensable, Lisa Obusek wishes to employ the a licensed 

health care giver to provide the attendant care services that she 

needs. She need to know whether attendant care services are an 

allowable expense under the No-Fault Act if they are administered 

by a licensed health care professional. She should not have to 

blindly take the step of incurring an expense that Travelers may 
19 

be legally obligated to assume before being told if she has 

stepped in a hole. 

B. Plaintiff's Prior Requests For Attendant Care.

 We do not agree with Travelers' contention that Lisa has 

never asked Travelers to pay for attendant care services provided 

by non-family, accredited care givers. The EIH Health Care 

Evaluation was attached to her counterclaim and, as recited 

above, the Evaluation recommended attendant care services. The 

counterclaim specifically requested that the court declare that 

"TRAVELERS is to provide LISA with all the products, services and 

accommodations required for LISA's maximum rehabilitation -- as 

set forth in the prior AGREEMENTS between LISA, ALLSTATE and the 

PLAN, and as stated in the attached EIH evaluation, and as 

otherwise may be required;. . ." (emphasis added). 

 We find that the above-quoted prayer for relief in the 

counterclaim and the EIH Evaluation attached to the counterclaim 

is a clear and unequivocal demand for attendant care services 

under the No-Fault Act. 

 Finally, it is obvious that a declaratory judgment here will 

be of practical help to the parties. When the question of 

Travelers' obligation to pay for attendant care services provided 

by an accredited care-giver is finally resolved, Lisa and her 

family can make decisions about the future and Travelers will 

know the extent of its liability. 

 Accordingly, the issue of Travelers' obligation under the 

No-Fault Act to pay for attendant care services provided by an 

accredited care-giver is ripe for resolution. 
20 

C. Allowable Expenses

 The No-Fault Act allowed persons injured in automobile 

accidents to recover "allowable expense[s]." The Act defined 

such expenses in relevant part, as follows: 

"Allowable expense" means reasonable charges 

incurred for, or the reasonable value of 

(where no charges are incurred), reasonably 

needed and used products, services and 

accommodations for: 

(A) professional medical treatment and care; 

(B) emergency health services; 

(C) medical and vocational rehabilitation 

services; 

(D) expenses directly related to the funeral, 

burial, cremation, or other form of 

disposition of the remains of a deceased 

victim, not to exceed one thousand five 

hundred ($1,500) dollars;. . . 

40 Pa.C.S.A. § 1009.103 (repealed). The parties agree that the 

attendant care in dispute here does not fall under the category 

of "emergency health services.”0 Lisa does contend, however, 

that her attendant care needs do fit within the definition of 

“professional medical treatment and care” and “medical 

rehabilitation services.”0 

 

0"Emergency health services" refer to emergency services 

administered by emergency medical personnel. Id. 

0Although Lisa is arguing that her attendant care requirements 

are medical rehabilitation services, we note that to the extent 

that attendant care would not reduce Lisa’s disability or restore 

her functioning, the cost for those services would not be 

recoverable as “medical and vocational rehabilitation services” 

under the No-Fault Act. Reilly v. SEPTA, 489 A.2d 1291 (Pa. 

1985). Whether or not attendant care services which would tend 

to reduce disability or to restore functioning are recoverable 
21 

 The district court concluded that the Pennsylvania Supreme 

Court's decision in Drake v. Pennsylvania National Mutual 

Casualty Ins. Co., 601 A.2d 797 (Pa. 1992), controlled its 

analysis. The court held that, under Drake, attendant care 

"provided by accredited non-family, professional medical 

treatment and care providers" is an allowable expense under 

Section 103 of the Act, Memorandum Opinion at 11, and therefore 

granted summary judgment to Lisa on her attendant care claim.0 

 Travelers argues that Drake is not controlling; that 

attendant care services are not an allowable expense under the 

Act even if provided by accredited care-givers; and that it 

therefore has no obligation to pay for such services. In Drake, 

Millard Fertig suffered serious spinal injuries when the 

automobile he was driving was struck from behind by another car. 

As a result of the injuries, Fertig was rendered quadriplegic. He 

received in-patient hospital care for approximately two months 

and then was released to his home with special equipment and 

nursing care. However, within a year of the accident, he was 

admitted to a nursing home where he remained until his death 

approximately 5 years later. 

 Fertig's automobile was covered by insurance under the NoFault Act and his carrier paid all of the costs of his medical 

treatments. However, approximately three years before his death, 

 

under the Act as “medical and vocational rehabilitation services” 

appears to be an open question under Pennsylvania law and is a 

question which we do not decide today. 

0We exercise plenary review over the district court's grant of 

summary judgment. Nathanson v. Medical College of Pennsylvania, 

926 F.2d 1368, 1380 (3d Cir. 1991). 
22 

the carrier filed a state-court declaratory judgment action to 

determine its obligation to pay for Fertig's room charges in the 

nursing home under the No-Fault Act. The carrier argued that it 

was not liable for the room charges because Fertig "was receiving 

only custodial care at the home rather than medical or 

rehabilitative treatment." Drake, 601 A.2d 797, 798-799. 

 At trial, the carrier presented medical testimony that 

Fertig had reached the point in his rehabilitation where he was 

no longer a candidate for physical therapy "and was receiving 

only maintenance and supportive care." Id. at 799. However, one 

physician testified that Fertig needed periodic review of his 

bladder and bowel functions, that he required skilled nursing 

care or his condition could regress, and that even though he was 

not a candidate for rehabilitation he needed medical and nursing 

care because of his condition. Id. 

 The trial court found that Fertig's medical condition 

required the care he was receiving at the nursing home and that 

Fertig's no-fault carrier had to pay that cost under the Act. 

Accordingly, the trial court ordered the carrier to pay for all 

of Fertig's charges at the nursing home including that portion of 

the charges that resulted from only custodial care. 

 On appeal, the Pennsylvania Superior Court reversed, holding 

that under Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985), no-fault 

carriers have no obligation to pay for expenses that are merely 

custodial. See Pennsylvania National Mutual Casualty Ins. Co. v. 

Fertig, 555 A.2d 208 (Pa. Super. 1989). In so deciding, the 

Superior Court quoted Reilly stating: "[s]ervices which do not 
23 

reduce the disability of the victim or restore his functioning, 

being custodial in nature, would not be recoverable under the NoFault Act. . . ." 555 A.2d at 209, (quoting Reilly, 489 A.2d at 

1303). The Pennsylvania Supreme Court then granted allocatur: 

[t]o consider whether such custodial care 

might be 'medical care' payable by the 

insurer as an allowable expense under 40 P.S. 

§ 1009.103 even though Reilly held that it 

was not the responsibility of the insurer 

because it was not "rehabilitation" under 

§103. 

601 A.2d at 799. 

 The Pennsylvania Supreme Court ruled that the Superior 

Court's reliance on Reilly had been misplaced and reversed. 601 

A.2d at 800. The court reasoned that Reilly only held that 

custodial care that was not rehabilitative was not recoverable as 

"medical and vocational rehabilitation services." However, "[i]t 

was never suggested that custodial, non-rehabilitative care might 

nonetheless be 'medical care' recoverable from a no-fault carrier 

as another type of allowable expense, namely 'professional 

medical treatment and care.'" Id.

 The Court noted that the purpose of the No-Fault Act was to 

provide prompt and adequate basic loss benefits to victims of 

motor vehicle accidents and to guarantee that accident victims 

receive prompt and comprehensive professional treatment. Id. The 

court also noted that under Pennsylvania's Statutory Construction 

Act, 1 Pa.C.S.A. § 1928(c), the No-Fault Act "must be liberally 

construed to effectuate its purposes, erring in favor of coverage 
24 

for the insured in close or doubtful cases." Id. (emphasis 

added). 

 The court ruled that Fertig's nursing home accommodations 

would be covered under the No-Fault Act if the accommodations 

were necessary either as "professional medical treatment and 

care" or "medical and vocational rehabilitation services." The 

court concluded that if the cost of Fertig's nursing home 

accommodations was an allowable expense, then the room charges, 

i.e., custodial care charges, were covered as well. Id. at 801. 

Although Reilly precluded no-fault coverage for nonrehabilitative custodial care, the court determined "that 

entitlement for the cost of 'professional medical treatment and 

care' may include medically necessary nursing services even if 

the services may be characterized as custodial." Id. Thus, 

Fertig's nursing home accommodations were payable by his no-fault 

carrier as "professional medical treatment and care," and 

constituted an allowable expense under the Act even if some of 

the services included in those charges were custodial in nature 

as long as the custodial services were "necessary due to 

accident-related injuries." Id. 

 The analysis in Drake was based, in part, on language 

contained in Fertig's no-fault policy with the carrier. That 

policy covered reasonable charges incurred for "professional 

medical treatment and care" which included "hospital and 

professional nursing services for diagnosis, care, and recovery. 

. . ." Id. Here, there is no insurance policy because Lisa's 

claim was processed under the Assigned Claims Plan. Nonetheless, 
25 

we do not believe that the absence of a policy which defines 

"professional medical treatment and care" is crucial to the 

resolution of this case. The Drake court noted that the No-Fault 

Act does not define "professional medical treatment and care". 

Additionally, the court noted that neither the No-Fault Act nor 

31 Pa. Code § 66.102 (which sets forth a sample No-Fault 

insurance policy) excludes custodial care from the definition of 

"professional medical treatment and care." Drake at 801. 

 Under Drake, custodial services that are administered as 

part of professional medical treatment and care are an allowable 

expense under the No-Fault Act so long as they are required 

because of accident-related injuries. See also, American 

Motorists Insurance Co. v. Farmers Bank and Trust Co. of Hanover, 

644 A.2d 1232 (Pa. Super. 1994). 

 In Farmers Bank and Trust Co., American Motorists, the nofault carrier, filed a petition for declaratory judgment seeking 

to be relieved of its obligation to pay for nursing home services 

which it characterized as "custodial care". Id. at 1233. Farmers 

Bank, the guardian of the estate of the person injured in the 

automobile accident, filed an answer and then moved for judgment 

on the pleadings, alleging that it was entitled to judgment as a 

matter of law because the no-fault carrier failed to raise the 

issue of whether the nursing home care was related to the 

accident. The trial court granted the motion for judgment on the 

pleadings and the no-fault carrier appealed. 
26 

 A panel of the Pennsylvania Superior Court affirmed the 

trial court's grant of the motion for judgment on the pleadings.0

In reaching that decision, the court commented as follows: 

 In Drake v. Pennsylvania Nat. Mut. Cas. 

Ins. Co.,. . ., our supreme court held that, 

under the No-Fault Act, there is no per se 

exclusion for expenses related to medical and 

nursing care which is custodial; and that the 

cost of custodial care was an allowable 

expense under the applicable no-fault 

automobile policy under the No-Fault Act, so 

long as it was necessary due to accident 

related injuries. Thus, the fact that the 

insured is receiving custodial care does not, 

of itself, relieve the insurer of the 

responsibility of the cost of his care. 

Rather, the insurer must, in terms of a 

motion for judgment on the pleadings, allege 

not only that the care is custodial, but also 

that the care in unrelated to the accident, 

in order to be relieved of the financial 

responsibility for the costs of this type of 

care. 

644 A.2d at 1235 (citations omitted). Accord, Gallagher v. 

Harleysville Mutual Insurance Co., 617 A.2d 790, (Pa. Super., 

1992) ("custodial services are compensable under § 1009.103 as an 

allowable expense of a professional medical treatment or care.") 

 Travelers is arguing that custodial care in the form of 

attendant care is not compensable under the Act even if 

administered by accredited health care professionals. 

 

0Although the Superior Court affirmed the trial court's grant of 

the motion for judgment on the pleadings in regard to the 

carrier's failure to plead that the care was unrelated to the 

accident, the Superior Court reversed the trial court on the 

trial court's finding that the four year statute of limitations 

for declaratory judgment actions barred the no-fault carrier from 

amending its complaint. 644 A.2d at 1235. 
27 

 It is beyond dispute that if Lisa were institutionalized in 

a rehabilitation center or nursing home Travelers would be 

obligated to pay the cost of custodial care that she received. 

See Drake, supra. Travelers' argument here is merely a 

restatement of the position that the Pennsylvania Supreme Court 

ruled against in Drake. The only distinction we perceive between 

Drake and its progeny on the one hand, and Lisa's claim on the 

other hand, is that Lisa has chosen to remain at home rather than 

be institutionalized. That choice cannot defeat her claim for 

No-Fault benefits. She needs attendant care because of her 

accident-related injuries, and Travelers cannot argue otherwise. 

Travelers' own expert opined that Lisa should have a licensed 

practical nurse available to her to change her Foley catheter and 

to supervise the attendant care "so that it is done effectively 

or any time she runs into respiratory, skin, autonomic, or GU 

complications." Joint Appendix at 473a. In addition to nursing 

supervision of her general attendant care, Lisa needs review of 

her bowel functions, including periodic artificial stimulation. 

This attention to bowel and bladder functions is similar to the 

kind of care Fertig was receiving in the nursing home in Drake

and is, we believe, the kind of care that led the Pennsylvania 

Supreme Court to find that Fertig's nursing home accommodations 

were "professional medical treatment and care." 

 A contrary conclusion would mean that Lisa can only receive 

the attendant services she needs if she is taken from her own 

home and placed in a professional care facility such as a nursing 

home. Yet, such a result would not benefit either party to this 
28 

dispute. It would add to Travelers' costs, and relegate Lisa to 

an institution. Accordingly, we find that the attendant care 

services needed by Lisa are an allowable expense under Section 

103(A) of the No-Fault Act.0

 Nevertheless, after a careful review of the record, we are 

concerned that the district court did not adequately address the 

exact nature and type of attendant care services Lisa requires. 

It appears that the district court assumed that Lisa would need 

the attendant care services outlined in the EIH Evaluation, 

however the court never made a finding to that effect. See

Memorandum Opinion at 5 n. 3.0 It is, of course, entirely 

possible that the district court intended that the "attendant 

care services" at issue are those set forth in the comprehensive 

and detailed EIH recommendation attached to the counterclaim and 

a formal finding to that effect may, therefore, be all that is 

necessary. In its order dated October 14, 1994, the court simply 

declared that Lisa was entitled to payment for all "'allowable 

expenses' under the Pennsylvania No-Fault Motor Vehicle Insurance 

Act . . . and [Drake]." However, declaring that Travelers is 

liable for all payments required by law does not provide either 

side to this dispute the clarification the parties are entitled 

 

0Because we hold that attendant care services are an allowable 

expense under Section 103(A) of the No-Fault Act, it is 

unnecessary to consider Travelers' argument that the attendant 

care services are "replacement services" and therefore subject to 

the statutory limit for payment for replacement services that has 

already been met. 

0Travelers apparently assumed for purposes of this appeal that 

the attendant care services needed by Ms. Obusek are the same 

services that her mother has been providing to her since 

1980. Brief of Appellant at 22 n. 10. 
29 

to. Accordingly, we will remand for a determination of the 

nature and type of attendant care services which are appropriate 

for Lisa's needs. If the district court concludes that those 

services are sufficiently set forth in the EIH report it may, of 

course, make a finding of fact to that effect. 

IV. 

For the above reasons, we will reverse the district court’s 

judgment and remand for a determination of the nature and type of 

attendant care services required by Lisa.