J. L. Simmons Co., Inc., Cross-Appellant v. The Fidelity and Casualty Co., Cross-Appellee

FAIRCHILD, Chief Judge.

This is an appeal by the defendant, The Fidelity and Casualty Company of New York (Fidelity) from judgment in favor of the plaintiff, J. L. Simmons Company, Inc. (Simmons). Jurisdiction is founded on diversity of citizenship. The parties accept Illinois law as controlling substantive questions.

Simmons, a construction contractor, brought this action on a policy of insurance issued to it by Fidelity alleging that Fidelity’s refusal to defend certain actions brought against Simmons was a breach of the policy and rendered Fidelity liable to Simmons for sums paid in…