The opinion of the court was delivered by: DURKIN
This action is now before the court for decision following trial to the court without a jury.
Plaintiffs, residents of Florida, were involved in an automobile accident on January 13, 1991, on Pennsylvania Route 940 in Hazle Township, Luzerne County, Pennsylvania, after having attended a viewing for a deceased relative. At the time, plaintiffs were passengers in a vehicle being operated by Kenneth Harold Robers, Jr., of Cooper City, Florida. The accident was an intersection accident involving two (2) cars. The vehicle occupied by plaintiffs was struck on the rear passenger side of the vehicle. The operator of the other vehicle was Cecilia Chitswara of Drifton, Pennsylvania.
A third party action was filed against both drivers and the matters were resolved by way of settlement. Plaintiff, Arcadio Rodriguez, received a total sum of Thirty-Five Hundred Dollars ($ 3,500.00) for his injuries and the plaintiff, Jean Rodriguez, received a total sum from both liability carriers of Forty-One Thousand Five Hundred Dollars ($ 41,500.00). After having received policy limits from the tortfeasor and exhausting the underinsured motorists policy on the automobile in which they were riding, they now seek underinsured benefits from a policy of insurance they had with defendant, CIGNA Property and Casualty Company.
II. STIPULATED FACTS AND OTHER MATTERS
1. Florida law applies, and in particular, the Florida No-Fault/Uninsured Motorist Act applies.
2. A true and correct copy of the policy of insurance that is applicable in this case has been attached to defendant's trial brief and marked as Exhibit "A".
4. No medical bills were sent to CIGNA with regard to any treatment Mrs. Rodriguez had for rheumatoid arthritis.
5. In the underlying action, Arcadio Rodriguez was paid the sum of Thirty-Five Hundred Dollars ($ 3,500.00). Plaintiff, Jean Rodriguez, was paid the total sum of Forty-One Thousand Dollars Five Hundred Dollars ($ 41,500.00).
6. The rib fracture injuries and Pneumothorax injuries sustained by plaintiff, Jean Rodriguez, in the motor vehicle accident completely resolved by the end of February, 1991.
7. The total policy limits under the CIGNA policy of insurance at issue is Three Hundred Thousand Dollars ($ 300,000.00) per accident.
8. Florida Motor Vehicle No-Fault Law (627.730-627.7405) provides in pertinent part as follows:
"Recovery for pain, suffering, mental anguish, and inconvenience is allowed where injury results in permanent loss of bodily function, permanent injury, significant permanent scarring or disfigurement, or death (627.737)."
9. The parties agree that the sole issue before the court is whether or not both plaintiffs have overcome the tort threshold in order to have a claim for pain and suffering, mental anguish and inconvenience.
10. The parties agree that there is the need to establish permanence of injuries to recover for the items of damages specified.
III. CLAIM OF ARCADIO RODRIGUEZ
11. Arcadio Rodriguez is currently sixty-two years, born August 4, 1934, married and resides in Key West, Florida, with his wife, Jean. He is a graduate of Key West High School and the University of Florida with a bachelor of science degree in business administration.
12. In 1973, Mr. Rodriguez went into his own business, a tire dealership which engages in tire sales and mechanical work. Mr Rodriguez has seven (7) employees including his brother who is a master mechanic and oversees the mechanical aspect of the business.
He also employs his son who is the service manager. Mr. Rodriguez oversees the business which includes taking care of the books, paying the bills, balancing the checkbook, doing paperwork and ordering supplies.
13. Immediately following the accident, Mr. Rodriguez was treated at an Emergency Room on January 13, 1991, and released. He was diagnosed with acute, right lower leg abrasion and abrasion to the right knee. Mr. Rodriguez was advised to see Dr. Lease, a local orthopedic surgeon, if swelling continued and also to apply ice packs to the affected area. Two days later, he was seen by Dr. Lease.
14. By way of history to Dr. Lease, Mr. Rodriguez in part advised the doctor that his leg was bothering him very little, essentially not at all. He advised the doctor that he could walk without difficulty. On examination, Mr. Rodriguez walked with a normal gait and was able to do a deep knee bend. The range of motion of the knee was also full and there was no affusion. There was also normal ligamentous stability to the varus and valgus stress and lachman testing and stressing also of posterior cruciate ligament. There was also very slight pain on stress of the medical collateral ligament.
15. Upon x-ray to the right knee, Dr. Lease noted radiodense bodies adjacent to the medial femoral condyle and adjacent to the posterior spine of the intra-condylar notch. The doctor felt that this was an old injury, rather than new. (This opinion was also later shared by Dr. John Lockwood of Key West, Florida, who saw Mr. Rodriguez saw on January 28, 1991, and also by Dr. Robert Catana who saw Mr. Rodriguez on August 1, 1996).
16. The day after being seen by Dr. Lease, Mr. Rodriguez and his wife returned to their ...