(dissenting). I respectfully dissent.
The majority opinion arrives at an equitable conclusion but not one which coincides with the legal rights of the parties under contract law.
I agree that prejudgment interest cannot be recovered as part of the costs or expenses of the lawsuit.
At oral argument it was agreed that the defendant offered the maximum of its policy to plaintiff before suit was started. This may go to the equities but is really immaterial as far as the contract between the parties is concerned. The contract limited liability for damages to a total of $40,000.
The policy further provided the defendant had to "[p]ay all interest which shall accrue after the entry of judgment and until the Company has paid, tendered, or deposited in Court such portion of any judgment not exceeding the limit of the liability of the Company”.
Cosby v Pool, 36 Mich App 571; 194 NW2d 142 *119(1971), and Stone v Fawcett, 63 Mich App 487; 234 NW2d 577 (1975), do not control as in each of those cases the company admitted or stipulated to liability for some prejudgment interest. In our case the company stands foursquare on the words of the policy. I agree with the majority in Dittus v Geyman, 68 Mich App 433; 242 NW2d 800 (1976), lv den, 397 Mich 837 (1976), that neither the contract nor public policy necessitates payments of interest above the damage limits. If public policy is to require payment of interest over the contract maximum for damages, the Legislature, by statute, should definitely require it. MCLA 600.6013, MSA 27A.6013 requires payment of interest by the defendant in a lawsuit, but does not amend a contract of insurance not already providing for prejudgment interest.