Contrary to the plaintiff's contention, the documentary evidence submitted by HIC, including the insurance policies and a check payable to the plaintiff in the underlying action, representing HIC's proportional share of the costs and interest set forth in the amended judgment, conclusively disposed of the plaintiff's claim that HIC failed to satisfy its obligations under the excess policy. HIC was only responsible for prejudgment interest on that portion of the underlying judgment which it was obligated to pay under its policy ( see generally Dingle v. Prudential Prop. & Cas. Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15, 651 N.E.2d 883;Fama v. Metropolitan Prop. & Cas. Ins. Co., 242 A.D.2d 663, 662 N.Y.S.2d 784;Home Indem. Co. v. Reid, 216 A.D.2d 530, 531, 628 N.Y.S.2d 779), and
Allstate's offers to settle the action were not unconditional, and consequently did not satisfy the definition of tender required by the regulation ( see Fama v. Metropolitan Prop. Cas. Ins. Co., 242 A.D.2d 663; see Welhoff v. Farm Bur. Town Country Ins. Co., 54 S.W.3d 589 [Mo]; Safeway Ins. Co. of Ala. v. Amerisure Ins. Co., 707 So.2d 218 [Ala]; Davis v. Allstate Ins. Co., 434 Mass. 174, 747 N.E.2d 141). However, Allstate's placement of $750,000 in escrow subsequent to the entry of judgment satisfied the definition of payment within the meaning of the policy ( see Providence Washington Ins. Co. of Alaska v. Fireman's Fund Ins. Cos., 778 P.2d 200 [Alaska]). Payment could not be made to Alexander Levit directly, since concededly he was not mentally or physically capable of receiving it. In its letter to the plaintiff's attorney, Allstate stated that that sum was placed in escrow "pending appointment of a guardian" for Alexander Levit without specifying any additional conditions. The fact that the money was placed in the insured's attorney's escrow account is of no consequence, since the attorney owed a fiduciary obligation to "anyone with a beneficial interest in the trust" ( Takayama v.
Here, although the policy language indicates that merely an offer of settlement is sufficient, section 60-1.1(b) requires tender of payment. An offer to settle pursuant to the policy limits is not an unconditional tender of payment and is insufficient to stop the accrual of interest on the judgment ( see Levit v Allstate Ins. Co., 308 AD2d 475 [2d Dept. 2003]; Fama v Metropolitan Prop. Cas. Ins. Co., 242 AD2d 663 [2d Dept. 1997]). Accordingly, the language of the regulation must control and Lancer's offer to settle just before trial was insufficient to stop the accrual of interest.
The Court of Appeals has held that an "insurer is only liable for interest on that portion of the judgment it must pay up to the policy limits, unless the contract of insurance contains a more generousprovision". Dingle v. Prudential Property and Cas. Ins. Co., 85 NY2d 657, 658, 651 NE2d 883, 883-884, 628 NYS2d 15, 15 — 16 (1995)(emphasis supplied); see also, Fama v. Metropolitan Property Casualty Ins.Co., 242 AD2d 663, 662 NYS2d 784 (2nd Dept., 1997). The Court made such ruling "under current insurance regulation" its own precedent, and public policy.