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by Kelly R. Eskew, J.D.
Clinical Associate Professor
Department of Business Law & Ethics
Kelley School of Business, Indiana University
1309 East Tenth Street
Bloomington, IN 47405
This year, the Indiana General Assembly offered up Senate Bill 101 (the Religious Freedom Restoration Act or “RFRA”),  a law ostensibly intended to protect Hoosiers from having to violate their religious principles, but widely viewed as a discriminatory response to the Seventh Circuit’s ruling in 2014 that struck down the state’s prohibition on same-sex marriage.  RFRA raced through the Republican supermajority legislature and was quickly made law by Governor Mike Pence, one of the nation’s most conservative governors.  But soon after, Pence signed an amendment that not only affirmed the rights of gays and lesbians, but also those who face discrimination on the basis of gender identity. 
Business and grassroots advocacy leaders collaborated to try to defeat RFRA.  None expected to succeed,  but what they achieved surprised everyone – and this collaboration is not an outlier. Businesses worked with social justice advocates on marriage equality, which is now the law throughout the country.  In fact, businesses often engage in such initiatives.  Businesses have corporate social responsibility (“CSR”) programs of varying complexity that not only make charitable donations through their foundations, but also pioneer environmental projects and work to strength communities and schools.  CSR is also part of the syllabus in business ethics classes, which many business schools now require students to take.  In other words, social responsibility has moved from fad to policy. Businesses are also creating their own social movements that mirror the principles shared by grassroots advocates in areas such as poverty eradication, health-care access, and sustainability. 
So when and why does the American business community align itself with grassroots social movements? And is there a roadmap that shows each how to leverage the other to achieve shared goals? A fully fleshed response to these questions is beyond the scope of this post, but the RFRA experience suggests some answers.
The ability of a policyholder to recover pre-tender costs is an evolving area of insurance coverage law. In Dreaded, Inc. v. St. Paul Guardian Insurance Company, the Indiana Supreme Court held that, under the facts of that case, a policyholder could not recover the legal expenses it incurred defending itself from a claim asserted by the Indiana Department of Environmental Management (“IDEM”) prior to giving notice of or tendering the claim to its insurer. . And while Dreaded was limited to the facts of that case, the Indiana Court of Appeals in Travelers Insurance Company v. Maplehurst Farms, Inc. interpreted Dreaded to mean that pre-tender costs are simply not recoverable. . The courts’ decisions in Dreaded and Maplehurst rested, in part, on two grounds: (1) an insurer’s duty to defend its policyholder does not arise until the policyholder provides notice of the claim;  and (2) the insurance policy provision requiring a policyholder to give notice of a claim to the insurer is a condition precedent to coverage. .
Indiana courts should reconsider the holdings in Dreaded and Maplehurst. . These holdings result in the forfeiture of coverage, which is unfair and disfavored under Indiana law,  and ignore the realities of long-tail environmental claims. . To begin, Dreaded’s explanation of the duty to defend is incomplete. An insurer’s duty to defend its policyholder is not triggered by notice of the claim, but rather by the existence of a potentially covered claim. .
by Robert A. Katz
Professor of Law (Faculty Profile)
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 349
530 W. New York Street
Indianapolis, IN 46202-3225
[Editor’s Note: This article departs from the typical format and citation style of the Indiana Law Review Blog in the interest of providing commentary on the passage of Senate Bill 101, commonly referred to as the “Religious Freedom Restoration Act,” or RFRA. This article consists of abbreviated remarks presented by the author to the House Judiciary Committee of the Indiana General Assembly on March 16, 2015, 10 days before the bill was signed into law by Indiana Governor Mike Pence.]
Good day. My name is Robert Katz. I am a professor of law at Indiana University Robert H. McKinney School of Law where I teach First Amendment law and law and religion. My research focuses on the tension between religious freedom and anti-discrimination law. It is one of my most profound concerns as a citizen, a parent, and a member of the Jewish community.
The freedom of religion is one of our most fundamental rights as Americans. Yet, also precious to us as citizens are our civil rights and, most relevantly here, our right to be free from discrimination.
As I understand it, this bill has two main goals.