BMD Contractors, Inc v. Fidelity an, No. 11-1345 (7th Cir. 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 11, 2012.
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United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 July 13, 2012 Before JOEL M. FLAUM, Circuit Judge DANIEL A. MANION, Circuit Judge DIANE S. SYKES, Circuit Judge No. 11 1345 BMD CONTRACTORS, INC., Plaintiff Appellant, Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:09 cv 0121 TWP DML FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant Appellee. Tanya Walton Pratt, Judge. O R D E R 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 No. 11 1345 Page 2 court s initial interpretation for essentially the same reasons we have explained above.1 1 We regret having omitted the subsequent history in Sloan from our initial opinion. The Third Circuit s decision escaped our notice based on an error in West s KeyCite system. The parties also overlooked the Third Circuit s decision in Sloan, apparently for the same reason. We thank Attorney Robert L. Byer, Duane Morris LLP, for alerting us to the omission and for notifying West, which has now corrected the error in its system.
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