United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1698 AXIS INSURANCE COMPANY, Plaintiff-Appellant, v. AMERICAN SPECIALTY INSURANCE & RISK SERVICES, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:19-cv-00165-DRL — Damon R. Leichty, Judge. ____________________

ARGUED JANUARY 9, 2024 — DECIDED AUGUST 6, 2024 ____________________

Before ROVNER, HAMILTON, and JACKSON-AKIWUMI, Circuit Judges. HAMILTON, Circuit Judge. Pursuant to an indemnification clause in a contract, plaintiff-appellant AXIS Insurance Com- pany sought indemnification from defendant-appellee Amer- ican Specialty Insurance & Risk Services for claims that AXIS settled. The parties’ contract did not require AXIS to give American Specialty the opportunity to choose between ap- proving the settlement payment and assuming the defense 2 No. 23-1698 itself. But American Specialty argues that AXIS was obliged to do so under Indiana law. The district court agreed with Amer- ican Specialty and granted summary judgment for it. We reverse. Insurance companies like AXIS and American Specialty bargain for the rights and obligations they hold in a contractual relationship like this one, including the specifics of a promise of indemnification. The contract in this case did not obligate AXIS to tender the defense to American Specialty before settling claims against AXIS. To the contrary, the con- tract required AXIS to provide notice of claims to American Specialty, but AXIS otherwise retained nearly complete con- trol over settlement decisions. Additionally, Indiana case law does not hold that the ten- der of defense is an implied condition in an indemnification agreement. Indiana law respects the freedom to contract in in- surance agreements. We see no reason to think the Indiana Supreme Court would depart from that respect for contrac- tual freedom and impose an implied requirement like the one advocated by American Specialty. I. Factual and Procedural Background AXIS is an insurance company that specializes in insur- ance policies for professional sports teams and other organi- zations in entertainment industries. In 2008, AXIS signed a contract with American Specialty that allowed American Spe- cialty to “accept proposals for insurance, negotiate, under- write and accept insurance coverages on [AXIS’s] behalf….” The parties’ contract stipulated that if American Specialty acted negligently in these tasks, it would indemnify AXIS for any resulting losses. That indemnification provision lies at the core of this case. No. 23-1698 3

A. Insurance for the Buccaneers In May 2013, an agent for the professional football team Tampa Bay Buccaneers reached out to American Specialty asking for an insurance quote. The Buccaneers wanted to ob- tain a variety of insurance coverages, including employer’s li- ability coverage. American Specialty sent back an insurance proposal and binder on behalf of AXIS. These documents mentioned employer’s liability coverage, but everyone in- volved in this litigation—AXIS, American Specialty, and the Buccaneers—has interpreted the language differently. When a Buccaneers’ player later asserted a substantial personal in- jury claim against the team, the parties to the insurance pur- chase disagreed about whether the Buccaneers’ policy in- cluded employer’s liability coverage. The Buccaneers be- lieved that the policy included it because that was what the team had requested. Alternatively, the Buccaneers demanded that AXIS and American Specialty cover any gap in coverage due