           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.”
