Opinion
No. 79-763.
December 18, 1979.
Appeal from the Circuit Court, Dade County, Donald E. Stone, J.
Jesse W. Miller, North Miami, for appellant.
Stabinski, Funt, Levine Vega and Regina F. Zelonker, Miami, for appellee.
Before HENDRY, BARKDULL and SCHWARTZ, JJ.
After an insurance company was sued by its insured, immediately prior to trial it made an offer of judgment pursuant to Rule 1.442, R.C.P., which was accepted and a judgment was entered in accordance with the offer. The insured then moved for and received attorney's fees pursuant to Section 627.428, Florida Statutes (1975), and the company appealed contending that because of the offer for judgment it had no liability for attorney's fees. We disagree.
The effect of the judgment was res adjudicata on the issues. Hay v. Sailsbury, 92 Fla. 446, 109 So. 617 (1926). If an insurance company wants to make an offer of settlement which includes attorney's fees, it should do so. In this connection, see: Hernandez v. Travelers Insurance Company, 331 So.2d 329 (Fla. 3d DCA 1976). In the instant case the insured recovered a judgment against his insurer on a policy. Therefore, pursuant to the terms of Section 627.428(1), Florida Statutes (1975), it is provided that in such instance the insured is entitled to attorney's fees.
The order under review is affirmed.