Premcor USA Inc v. American Home Assur

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 21, 2005
Before
Hon. Kenneth F. Ripple, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
No. 04-2549
Premcor USA, Inc., and the Premcor Appeal from the United States District
Refining Group, Inc., Court for the Northern District of
Plaintiffs-Appellants, Illinois, Eastern Division.
v. No. 03 C 7377
American Home Assurance John W. Darrah
Company, Judge.
Defendant-Appellee.
ORDER
The petition for rehearing filed by plaintiffs-appellants on March 22, 2005, is
GRANTED. The panel decision issued on March 9, 2005, is amended as follows:
Page 2, line 1, after “ . . . Illinois state court case.” insert: “Premcor also
argues that AHA had a duty to indemnify it for any liability incurred.”
Page 12, insert paragraph as new subpart D: “Finally, Premcor argues that
the district court should not have granted summary judgment on the issue of
AHA’s duty to indemnify. As the underlying state action remains pending on
appeal in the Illinois courts, Premcor is correct—the district court acted
precipitously. See, e.g., Outboard Marine Corp., 607 N.E. 2d at 1221 (“[T]he
question of whether the insurer has a duty to indemnify the insured for a
particular liability is only ripe for consideration if the insured has already
incurred liability in the underlying claim against it.”). Therefore, we reverse
the district court’s judgment on this point and remand for either dismissal
No. 04-2549 Page 2
without prejudice of this issue or a stay of the proceedings relating to this
issue until the underlying action in the Illinois state court has become final
(and any liability is determined).”
Page 12, section III, revise last sentence to read: “Summary judgment for
AHA on the duty to defend issues was correct. Summary judgment on the
duty to indemnify issue was premature, and we remand that issue to the
district court for proceedings consistent with this opinion.”