Bmd Contractors, Inc. v. Fidelity and Deposit Company of Maryland

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,
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.
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

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No. 11‐1345 Page 2
court’s initial interpretation for essentially the same reasons we have
explained above. 1
1We 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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