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Bmd Contractors, Inc v. Fidelity and Deposit Company of

United States Court of Appeals For the Seventh Circuit


July 13, 2012

BMD CONTRACTORS, INC., PLAINTIFF‐APPELLANT,
v.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, DEFENDANT‐APPELLEE.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09‐cv‐0121‐TWP‐DML Tanya Walton Pratt, Judge.

Chicago, Illinois 60604

Before JOEL M. FLAUM, Circuit Judge DANIEL A. MANION, Circuit Judge DIANE S. SYKES, Circuit Judge

ORDER

We hereby amend our opinion to add the following paragraph on p. 16, before the paragraph beginning "Finally, . . . ."

The Third Circuit shares our skepticism of the district court's analysis in Sloan. See Sloan & Co. v. Liberty Mut. Ins. Co., 653 F.3d 175, 180‐82 (3d Cir. Aug. 1, 2011). The Third Circuit reversed in part, and its reasoning reinforces our conclusion that "condition precedent" language will generally be sufficient to create a pay‐if‐paid clause. Id. at 181 ("The first subparagraph . . . states unequivocally that IOC's payment to Shoemaker is a condition precedent to Shoemaker's obligation to pay Sloan. We do not imagine that the parties intended otherwise merely because they did not use additional language to underscore their intent to create a pay‐if‐paid clause . . . ."). The Third Circuit ultimately concluded that other contractual language modified the pay‐if‐paid clause at issue in Sloan, id. at 182, but it rejected the district court's initial interpretation for essentially the same reasons we have explained above.*fn1


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