AMENDED COMPLAINT. Plaintiff THOMAS J. BARRY hereby files this Complaint for damages against

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1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO: CA AJ THOMAS J. BARRY, vs. Plaintiff, GEICO GENERAL INSURANCE COMPANY, Defendant. / AMENDED COMPLAINT Plaintiff THOMAS J. BARRY hereby files this Complaint for damages against Defendant GEICO GENERAL INSURANCE COMPANY ( GEICO ) and alleges as follows: JURISDICTION AND VENUE 1. This is an action for damages that are in excess of the sum of Fifteen Thousand Dollars ($15,000.00), exclusive of costs, interests and attorney s fees. 2. At all times material hereto Plaintiff has been a resident of Palm Beach County, Florida. 3. At all times material hereto GEICO has been a Maryland corporation doing business and issuing policies of insurance in the State of Florida. FACT ALLEGATIONS 4. Defendant GEICO issued a policy of insurance to the Plaintiff in Florida in the year The policy, number , effective from September 28, 2000 through March 28, 2001, included a per person bodily injury liability limit of $15, (A copy of the policy is in the possession of the Defendant.) Plaintiff was an insured under the policy.

2 5. On January 5, 2001, Plaintiff was operating a 1998 Kia motor vehicle on southbound I- 95 in Palm Beach County, Florida. 6. On that same day, Milos Coric, a Florida resident, was operating a motorcycle on southbound I-95 in or near Deerfield Beach, Florida. 7. Plaintiff s motor vehicle collided with the motorcycle operated by Milos Coric. As a result of the collision, Milos Coric sustained serious bodily injuries which culminated in his death on January 5, Plaintiff promptly reported the accident to Defendant GEICO and Defendant GEICO therefore knew almost immediately that Milos Coric had sustained bodily injuries culminating in his death and that Plaintiff had received traffic citations in connection with the fatality. 9. Sometime on or before January 29, 2001, Defendant GEICO attempted contact with Anne Marie Capelli, the surviving spouse of Milos Coric. By letter dated January 29, 2001, Defendant GEICO advised Ms. Capelli that GEICO was willing to tender the entire policy limits of $15, under Plaintiff s insurance to the Estate of Milos Coric. See copy of letter from Marija Stone to Anne Capelli attached hereto as Exhibit A. 10. However, notwithstanding the representation in its January 29, 2001 letter, Defendant GEICO wrote to Anne Marie Capelli on March 15, 2001 (the same day Ms. Capelli had been appointed Personal Representative of the Estate of Milos Coric), and advised her that Defendant GEICO was tendering its Bodily Injury limits under Plaintiff s policy in the amount of $10,000.00, Enclosed with such letter was a check drawn on the account of Defendant GEICO in the amount of $10,000 and a draft Release in Full of All Claims. Page 2 of 5

3 See copy of letter from Marija Stone to Anne Capelli with enclosures attached hereto as Exhibit B. 11. Anne Marie Capelli did not execute the release or accept the tendered $10, check. However, had the originally identified policy limits of $15, been tendered at that time, Ms. Capelli would have accepted that amount in full settlement of all claims against Plaintiff. 12. On March 28, 2001 Ms. Capelli initiated suit on behalf of the Estate of Milos Coric against the Plaintiff Thomas Barry for damages suffered as the direct and proximate consequence of the negligence of the Plaintiff. 13. After learning of the filing of the Complaint against the Plaintiff, GEICO sent a letter dated April 12, 2001, 72 days after its initial letter of January 29, 2001 to Mrs. Capelli, to counsel for the Estate of Milos Coric, in which GEICO S claim representative asserted that she inadvertently sent a check, letter and release to Ms. Capelli in the incorrect amount (emphasis added) and further asserting that so doing was a clerical error on my (her) part. Such letter contained an additional check for $5, and a release modified to reflect a total $15,000 payment. See copy of letter from Marija Stone to Michael Overbeck, Esq., with enclosure attached as Exhibit C. 14. Ms. Capelli did not accept the late tender and the Estate of Milos Coric continued the lawsuit against the Plaintiff, Thomas Barry. 15. The lawsuit was eventually tried before a jury. On August 22, 2002, a verdict was returned against Thomas Barry in favor of the Estate of Milos Coric. Final judgment was entered against the Thomas Barry on August 28, 2002 in the amount of $1,121, Page 3 of 5

4 16. No appeal was taken challenging the validity of the Final Judgment and the time for taking an appeal with respect to the Final Judgment has expired. BAD FAITH 17. GEICO, pursuant to its policy of insurance with the Plaintiff, Florida statutory law and the common law duty of good faith, through its agents, employees and representatives, undertook and owed duties to the Plaintiff, including but not limited to: a) A duty to settle any claim against its insured within the policy limits when it could and should have done so had it acted fairly and honestly toward its insured with due regard for its insured s interests; b) A duty to employ fair settlement practices; c) A duty to use the same degree of care and diligence as a person of ordinary care and prudence would exercise in the management of his/her own business; and d) A duty to its insured to exercise the utmost good faith. 18. The foregoing duties are fiduciary and are not delegable in nature. 19. GEICO is liable for the acts and omissions of its agents, employees and representatives in the handling of the claim of the Estate of Milos Coric against the Plaintiff. 20. GEICO breached its duties of good faith towards its insured by one or more of the following acts or omissions, any one of which constitutes a departure from the acceptable standard of care for claim handling: a) Failing to settle the claim against its insured within the policy limits when it could and should have done so had it acted fairly and honestly toward its insured with due regard for its insured s interests. b) Failing to employ fair settlement practices. c) Failing to use the same degree of care and diligence as a person of ordinary care and prudence would exercise in the management of his or her own business; and, d) Failing to exercise the utmost good faith. Page 4 of 5

5 21. By reason of GEICO s breach of the aforesaid duties of good faith, Plaintiff has been damaged in that he now has a judgment entered against him which exceeds $1,121, and continues to accrue statutory interest and has been further damaged as a direct consequence of such breach. 22. As a direct and proximate result of the above breaches of GEICO s duty of good faith, Plaintiff BARRY has employed RICCI, LEOPOLD, FARMER & MC AFEE, P.A. as his attorneys to bring this action and has agreed to pay reasonable attorney s fees and costs for services. WHEREFORE, Plaintiff demands judgment for compensatory damages against Defendant GEICO together with costs, attorney s fees, interest and such other direct and consequential damages which he may have suffered as a result of the breaches of fiduciary duties. Plaintiff also demands a trial by jury. I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U. S. Mail, postage prepaid, this day of May, 2003 to Robert D. Moses, Esq., Wiederhold, Moses & Rubin, Brandywine Centre II, Suite 240, 560 Village Blvd., West Palm Beach, FL RICCI * LEOPOLD, P.A Palm Beach Lakes Blvd. Suite 250, P.O. Box 2946 West Palm Beach, FL Phone: Fax: By: EDWARD M. RICCI, Esq. Florida Bar No.: BENJAMIN SALZILLO, Esq. Florida Bar No.: Page 5 of 5