Randal Strauss v. Chubb Indemnity Insurance Comp

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2580
RANDAL STRAUSS AND DIANE
STRAUSS,
Plaintiffs-Appellees,
v.
CHUBB INDEMNITY INSURANCE
COMPANY, VIGILANT INSURANCE
COMPANY, FEDERAL INSURANCE
COMPANY, AND GREAT NORTHERN
INSURANCE COMPANY,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Wisconsin
No. 11 CV 981 — Aaron E. Goodstein, Magistrate Judge.
ARGUED FEBRUARY 10, 2014 — DECIDED NOVEMBER 18, 2014
2 No. 13-2580
Before HAMILTON, Circuit Judge, and KENDALL, District
Judge.1
KENDALL, District Judge. Randal and Diane Strauss
constructed a home in Mequon, Wisconsin in 1994. The
Strausses insured the home with a number of policies (collec-
tively, “the Policy”) issued by Chubb Indemnity Insurance
Company, Vigilant Insurance Company, Federal Insurance
Company, and Great Northern Insurance Company (collec-
tively, “the Chubb Defendants”) from October 1994 to October
2005. Water infiltrated and damaged the home through a
defect present since the completion of construction; however,
the damage went undiscovered until 2010, well after the Policy
expired. When the Strausses submitted a claim to the Chubb
Defendants seeking recovery for the damage, they refused
coverage, contending that because the damage manifested in
2010 and the “manifestation” trigger applies to first-party
property insurance, it could not be responsible for the damage.
The Chubb Defendants additionally asserted that the claim was
submitted well beyond the applicable statute of limitations. See
Wis. Stat. § 631.83(1)(a). The Strausses subsequently brought
this action. The district court concluded that the “continuous”
trigger theory applied due to the language of the Policy such
that coverage existed for the entire loss. Because the continu-
ous trigger theory applied, the district court found that the
1
The Honorable Virginia M. Kendall, District Judge for the United States
District Court, Northern District of Illinois, sitting by designation. Chief
Judge Wood recused herself after oral argument and has not participated
in deciding this appeal. This decision is being issued by a quorum of the
panel. See 28 U.S.C. § 46(d).
No. 13-2580 3
claims were not time-barred. The Chubb Defendants now
appeal, arguing that (1) the manifestation trigger theory
applies to first-party property insurance policies universally
and (2) the Strausses’ suit was not timely filed. For the follow-
ing reasons, we affirm.
I. Background
The Strausses built their home in Mequon, Wisconsin in
1994. To insure the home, they purchased a “Chubb Master-
piece Deluxe Home Coverage” first-party property insurance
policy. The Policy was issued by the Chubb Defendants over
the years, from the time of construction in October 1994
through October 2005.2 From 2005 onward, the Strausses
obtained insurance coverage for the home from other provid-
ers.
The Policy states that coverage is limited “only to occur-
rences that take place while this policy is in effect.” “Occur-
rence” is defined as “a loss or accident to which this insurance
applies occurring within the policy period. Continuous or
repeated exposure to substantially the same general conditions
unless excluded is considered to be one occurrence.” Under the
Policy taken out by the Strausses, a “ ‘covered loss’ includes all
risk of physical loss to [the] house or other property . . . unless
stated otherwise or an exclusion applies.” In addition, the
Policy includes a “Legal Action Against Us” clause, mandating
2
Vigilant issued the policy from October 1994 to October 2000 and October
2002 to October 2004; Federal from October 2000 to October 2002; Chubb
from October 2004 to October 2005; and Great Northern from October 2004
to October 2005.
4 No. 13-2580
that any action against the Chubb Defendants be brought
“within one year after a loss occurs.”
In October 2010, the Strausses discovered that water
infiltration had been causing damage within the building
envelope of the home. The infiltration was ongoing and
progressive in nature, beginning around the time of original
construction and continuously occurring with each subsequent
rainfall. On December 22, 2010, the Strausses submitted a claim
to the Chubb Defendants for the discovered damage. The
Chubb Defendants denied coverage, relying on two bases: (1)
the damage was not discovered during any of their policy
periods; and (2) any legal action was time-barred pursuant to
both the applicable Wisconsin Statute of Limitations, see Wis.
Stat. § 631.83(1)(a), and the “Legal Action Against Us” clause
found in the Policy.
The Strausses filed suit in federal court on October 19, 2011,
within one year of their discovery of the damage caused by the
water infiltration. The parties cross-moved for summary
judgment. The district court initially denied both motions,
finding factual issues regarding the language of the Policy.
Upon reassignment to the Magistrate Judge and after clarifica-
tion of the language within the Policy, the parties sought
reconsideration of their motions for summary judgment. On
February 13, 2013, the district court concluded that the
“continuous” trigger theory applied to the “occurrence based”
Policy at issue because the Policy provided coverage for
ongoing losses. Because the “continuous” trigger theory
applied, the district court additionally found that the Strausses’
claim was not time-barred. Accordingly, the Chubb Defendants
were deemed liable for the damage. Upon this determination
No. 13-2580 5
of liability, the parties stipulated to damages while reserving
any appellate rights. This timely appeal followed.
II. Discussion
We review the district court’s interpretation of the
insurance policy, as well as its grant or denial of a summary
judgment motion, de novo. Nautilus Ins. Co. v. Bd. of Dirs. of
Regal Lofts Condo. Ass’n, 764 F.3d 726, 730 (7th Cir. 2014);
Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 723 (7th
Cir. 2011). Likewise, determinations of law in applying a
statute of limitations are reviewed de novo. See KDC Foods, Inc.
v. Gray, Plant, Mooty, Mooty & Bennett, P.A., 763 F.3d 743, 749
(7th Cir. 2014). The parties agree that Wisconsin law applies to
the key legal question presented in this case: whether the
“manifestation” trigger theory or “continuous” trigger theory
applies to the Policy. We construe the Policy as it would be
understood by a reasonable person in the Strausses’ position,
but we will not interpret the Policy to provide coverage for
risks the Chubb Defendants did not contemplate and for which
they did not receive premiums. See Am. Family Mut. Ins. Co. v.
Am. Girl, Inc., 268 Wis.2d 16, 673 N.W.2d 65, 73 (2004).
The interpretation of an insurance contract is a question of
law. Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 315 Wis.2d 556,
759 N.W.2d 613, 620 (2009). In Wisconsin, insurance policies
are interpreted under the same rules that apply to contract
construction. See Marotz v. Hallman, 302 Wis.2d 428, 734
N.W.2d 411, 421 (2007). The primary objective in interpreting
a contract is to ascertain and carry out the intentions of the
parties. Wadzinski v. Auto-Owners Ins. Co., 342 Wis.2d 311, 818
N.W.2d 819, 824 (2012). The insurance policy’s words shall be
6 No. 13-2580
given their common and ordinary meaning, and when the
policy language is plain and unambiguous, the policy is
enforced as written, “without resorting to the rules of construc-
tion or principles from case law.” Johnson Controls, Inc. v.
London Market, 325 Wis.2d 176, 784 N.W.2d 579, 586 (2010). If
the language is ambiguous, its ambiguity is construed in favor
of coverage for the insured. Id. The language of the policy
determines the extent of coverage. Soc’y Ins. v. Town of Franklin,
233 Wis.2d 207, 607 N.W.2d 342, 345 (Wis. Ct. App. 2000).
A. Coverage
For an insurance policy to potentially provide coverage to
an insured, a triggering event must occur during the policy’s
period of enforcement. Soc’y, 607 N.W.2d at 345-46. Because a
triggering event is necessary to implicate coverage, the core
issue in this case is how coverage is triggered under the Policy
for the water infiltration damage to the home. Wisconsin has
described four different theories to determine whether a
“triggering” event occurred during a relevant policy period:
The “exposure” theory fixes the date of injury as the
date on which the injury-producing agent first
contacted the body or the date on which pollution
began. The “manifestation” theory holds that the
compensable injury does not occur until it manifests
itself in the form of a diagnosable disease or ascer-
tainable property damage. The “continuous trigger”
theory, also known as the “triple trigger” theory,
provides that the injury occurs continuously from
exposure until manifestation. Finally, the “injury-in-
fact” theory allows the finder of fact to place the
No. 13-2580 7
injury at any point in time that the effects of expo-
sure resulted in actual and compensable injury.
Id. at 346; see also Michael G. Doherty, Allocating Progressive
Injury Liability Among Successive Insurance Policies, 64 U. CHI. L.
REV. 257, 261 (1997). Here, the competing theories put forth by
the parties are the manifestation and continuous triggers.
Under the manifestation trigger theory, only the insurer that
bears the risk at the time the loss manifests or can be discerned
is responsible for indemnification once coverage is found to
exist. Prudential-LMI Commercial Ins. v. Super. Ct., 51 Cal.3d 674,
798 P.2d 1230, 1246-47 (1990). Under the continuous trigger
theory in the context of progressive damage, all policies in
effect from the time the loss begins to the time the loss mani-
fests owe coverage. Plastics, 759 N.W.2d at 626. Selecting the
proper trigger theory is a prerequisite to determining whether
the water infiltration damage was covered.
The Chubb Defendants urge us to impose the manifestation
trigger theory, primarily arguing that the continuous trigger
theory should be limited to third-party coverage cases and that
the manifestation trigger is the only trigger suitable to analyz-
ing first-party property insurance policies. They cite a variety
of cases from jurisdictions across the country utilizing the
manifestation trigger in this context; however, noticeably
absent from this list is any decision from a Wisconsin court. See
generally, Scottsdale Ins. Co. v. CB Entm’t, No. 11-22838-CIV,
2012 WL 2412154 (S.D. Fla. June 26, 2012); Mangerchine v.
Reaves, 63 So.3d 1049 (La. Ct. App. 2011); State Farm Fire & Cas.
Co. v. Rodriguez, 88 S.W.3d 313 (Tex. App. 2004); John Q.
Hammons Hotels, Inc. v. Factory Mut. Ins. Co., No. 01-3654 CV S
8 No. 13-2580
SOW, 2003 WL 24216814 (E.D. Mo. Aug. 14, 2003); Winding
Hills Condo. Ass’n v. N. Am. Specialty Ins. Co., 332 N.J. Super. 85,
752 A.2d 837 (N.J. Super. Ct. App. Div. 2000); Bostick v. ITT
Hartford Grp., Inc., 56 F. Supp.2d 580 (E.D. Pa. 1999); S.W.
Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235 (Va. Cir. Ct.
1993); Jackson v. State Farm Fire & Cas. Co., 108 Nev. 504, 835
P.2d 786 (1992); Prudential, 798 P.2d 1230 (Cal. 1990).
In essence, the Chubb Defendants seek a bright-line rule
requiring use of the manifestation trigger theory in all first-
party property insurance coverage disputes. Conveniently
enough, we recently declined this very same invitation to limit
the continuous trigger to third-party coverage cases and
universally apply the manifestation trigger to first-party
coverage cases:
Safeco asks us to carve out an exception and hold,
despite a dearth of Wisconsin caselaw, that the
continuous trigger theory should only apply in
third-party coverage cases because the questions
presented in third-party cases . . . aren’t present in
first-party property damage claims. We aren’t
inclined to adopt an approach that lacks support
from Wisconsin’s caselaw . . .
Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 810-11 (7th Cir.
2012). The Chubb Defendants contend that any reliance on
Miller is inapposite, arguing that it is factually distinguishable
and that the relevant discussion about trigger theories is dicta.
Although we ultimately concluded that deciding the trigger
issue in Miller was unnecessary, of pertinence to our analysis
now is that we decided to refrain from instituting a rule
No. 13-2580 9
without guidance or input from Wisconsin courts despite being
asked to by an insurance company similarly situated to the
Chubb Defendants. The lack of support for limiting the
continuous trigger theory to the third-party liability context
from Wisconsin courts we noted in Miller still exists today.
Chubb has not offered convincing reasons to predict that the
Wisconsin Supreme Court would embrace a bright-line rule
imposing the manifestation trigger theory on all first-party
insurance contracts, regardless of policy language. See Liberty
Mut. Fire Ins. Co. v. Statewide Ins. Co., 352 F.3d 1098, 1100 (7th
Cir. 2003) (because this is a diversity case, we apply the law of
Wisconsin as we believe the Wisconsin Supreme Court would
apply it). Defining contract law is typically within the province
of the States, and we correspondingly do not find that the
Wisconsin Supreme Court would agree with Chubb’s position.
See Loucks v. Star City Glass Co., 551 F.2d 745, 746 (7th Ci. 1977)
(“[W]e sit as a court, not as a legislature; it is not our province
as a federal appellate court to fashion for [Wisconsin] what we
are certain many would say was a wise and progressive social
policy.”).
The Chubb Defendants’ argument fails not only because
Wisconsin courts have never adopted a rule that applies the
manifestation trigger independent of the language found in a
policy in the first-party context nor exiled the continuous
trigger theory to the third-party liability landscape, but also
because Wisconsin has unequivocally held that the language of
a policy guides the analysis and determines whether coverage
exists. Kremers-Urban Co. v. Am. Emp’rs Ins. Co., 119 Wis.2d 722,
351 N.W.2d 156, 164 (1984). In the context of determining
whether coverage was implicated under a comprehensive
10 No. 13-2580
liability policy, the Wisconsin Supreme Court explained that
the policy language dictated its decision:
We are invited to engage in a discussion of whether
policy coverage is triggered by ‘exposure’ to DES or
marketing activities . . . or whether policy coverage
is triggered by the ‘manifestation’ of adenosis or
cancerous lesions . . . We decline to engage in such
discussion, because we limit our review to the
language of the insurance policies. We restrict our
interpretation of coverage of the various policies to
the language of the insurance contracts.
Id. Wisconsin courts have consistently maintained this
position. See Johnson Controls, 784 N.W.2d at 596 n.20 (court
refused to adopt a general rule regarding layering insurance
policies because “our analysis is driven by policy language–
not generalizable concepts”); Plastics, 759 N.W.2d at 626 (“In
our analysis, we are again driven by policy language”); Am.
Girl, 673 N.W.2d at 75 (determination of whether an insurance
policy covers a claim depends upon policy language used);
Soc’y, 607 N.W.2d at 346 (use of continuous trigger theory was
mandated by the policy language); State Farm Mut. Auto. Ins.
Co. v. Cont’l Cas. Co., 174 Wis.2d 434, 498 N.W.2d 247, 250 (Wis.
Ct. App. 1993) (“The resolution of any coverage dispute is
necessarily governed by the terms of the policy as negotiated
by the parties”); Wis. Elec. Power Co. v. Cal. Union Ins. Co., 142
Wis.2d 673, 419 N.W.2d 255, 258 (Wis. Ct. App. 1987) (focusing
on language and terms of policy to determine whether cover-
age was triggered). Given that Wisconsin law provides a
straightforward path for interpreting the Policy, “we won’t
No. 13-2580 11
clutter the matter by discussing another jurisdiction’s approach
to different policies and claims.” Miller, 683 F.3d at 811.
Because Wisconsin consistently bases its decisions regarding
coverage disputes solely on the language contained in the
policies, regardless of whether the disputed policy is for first-
party or third-party liability, we consider the language of the
policy in dispute rather than rely on a general theory that
would apply regardless of policy language. We therefore
review the Policy as it was written and in the context of current
Wisconsin law, which does not require the application of any
single trigger theory to first-party policies.
Turning to the language of the Policy as mandated by
Wisconsin case law, we find that the provisions found in the
Policy require the application of the continuous trigger theory.
The language demands this result. The Policy covers “all risk
of physical loss to [the] house or other property covered under
this part of [the Policy], unless stated otherwise or an exclusion
applies.” The Policy applies “only to occurrences that take
place while this policy is in effect.” “Occurrence” is a defined
term, meaning “a loss or accident to which this insurance
applies occurring within the policy period. Continuous or
repeated exposure to substantially the same general conditions
unless excluded is considered to be one occurrence.” These
provisions are not ambiguous: given the Chubb Defendants’
definition of “occurrence,” which includes “continuous or
repeated exposure,” the parties “contemplated a long-lasting
occurrence” that could give rise to a loss “over an extended
period of time.” See Plastics, 759 N.W.2d at 626. According to
the Policy’s plain language, coverage is triggered when a
“loss” “occurrence” takes place during the Policy’s term. Once
12 No. 13-2580
such an occurrence takes place, the Policy protects against “all
risk of physical loss” to the home. The latent water infiltration
constituted a single occurrence under the Policy. Because the
Policy covers all risk of physical loss, the water damage
triggered coverage.
The Chubb Defendants argue that the Policy language
requires the application of the manifestation trigger theory
because “loss” in the definition of “occurrence” is not qualified
by “physical” and therefore means loss discovery or manifesta-
tion. See Atl. Mut. Ins. Co. v. Lotz, 384 F. Supp.2d 1292 (E.D.
Wis. 2002). But here, the Chubb Defendants read ambiguity
into the Policy’s provisions when there is none. It is difficult to
imagine a clearer, plainer statement than the Policy’s Deluxe
House Coverage language that a “ ‘covered loss’ includes all
risk of physical loss to [the] house.” We read the Policy from
“the objective standpoint of what a reasonable insured would
understand the policy to mean, not from the standpoint of
what the insurer intended.” Grotelueschen by Doherty v. Am.
Family Mut. Ins. Co., 171 Wis.2d 437, 492 N.W.2d 131, 134
(1992). The only reasonable interpretation of the Policy’s
“covered loss” definition is that physical damage to the
property triggers coverage; otherwise this provision would be
superfluous. See Progressive N. Ins. Co. v. Olson, 331 Wis.2d 83,
793 N.W.2d 924, 926-27 (Wis. Ct. App. 2010) (“Interpretations
that render policy language superfluous are to be avoided
where a construction can be given which lends meaning to the
phrase.”). We will not needlessly read ambiguity into the
Policy; but even if we did, that ambiguity would be resolved in
favor of the Strausses. Id. at 926. The Chubb Defendants
marketed the Strausses’ Policy as their “Masterpiece” policy.
No. 13-2580 13
A reasonable insured would understand this to be high-end
coverage with high premiums and corresponding high-end
service.
Here, while there was only one ongoing occurrence as
defined by the Policy, there was continual, recurring damage
to the property with each successive rainfall. The Chubb
Defendants do not dispute that physical damage to the
building envelope of the home took place during each policy
period from October 1994, when the home was constructed, to
October 2010, when the effects of the water infiltration mani-
fested. Because the Policy language demonstrates that the
parties intended for the continuous trigger theory to apply, the
benefits of the Policy are now available to the Strausses.
Although the Chubb Defendants undoubtedly would prefer to
have limited what occurrences trigger coverage under the
Policy, “when [they] have failed to do so in the insurance
contract itself, this court will not rewrite the contract . . . to
release the insurer from a risk it could have avoided through
a more foresighted drafting of the policy.” Kremers, 351 N.W.2d
at 167. Because neither party contends that an exclusion
applies, this completes our analysis of determining whether
coverage exists under the Policy. See Miller, 683 F.3d at 809 (we
use Wisconsin’s three-step process to determining coverage: (1)
the policy must first make an initial grant of coverage; and (2)
if so, we look at whether an exclusion precludes coverage; and
(3) if an exclusion applies, we look to see whether an exception
reinstates coverage).
Before concluding our discussion of the coverage question,
we address the Chubb Defendants’ argument that a bright-line
manifestation trigger theory is supported by public policy
14 No. 13-2580
because it creates certainty for insurers by preventing liability
from arising on stale policies. They additionally contend that
the application of the continuous trigger theory to first-party
property insurance would have the effect of keeping all
insurers liable for property damage indefinitely, regardless of
whether a policy is still in effect. But these arguments pertain
only to a situation where we impose a specific trigger theory
on all first-party property insurance contracts, which we
decline to do. Because we conclude the Wisconsin Supreme
Court would not apply a universal standard, insurance
companies remain free to create innovative policies that they
draft according to the unique circumstances of each client and
policy. In fact, this is apparently the business strategy the
Chubb Defendants pursue as described in their 1999 Annual
Report: “But there’s much more to taking care of customers
than competent claim handling. Exceeding expectations begins
with designing Insurance policies with innovative and often
unique coverage features.” We accordingly abstain from
limiting Wisconsin insurance companies to any single trigger
theory.
Creating a bright-line rule at the Chubb Defendants’
request because they perhaps regret the language they drafted
for the Policy would be an inappropriate interference with the
parties’ rights to contract. See Balt. & O.S.W. Ry. Co. v. Voigt,
176 U.S. 498, 505 (1900) (“the usual and most important
function of courts of justice is rather to maintain and enforce
contracts than to enable parties thereto to escape from their
obligation on the pretext of public policy”); Kuhl Motor Co. v.
Ford Motor Co., 270 Wis. 488, 71 N.W.2d 420, 423 (1955). The
Chubb Defendants were in the best position to dictate how the
No. 13-2580 15
Policy would be activated, its coverage, and its exclusions.
Letting the Chubb Defendants off the hook now would reward
their sloppy drafting. It is not the province of this Court to alter
the unambiguous terms of the Policy.
B. Timeliness of the Suit
The Chubb Defendants argue that the Strausses filed their
suit too late, past either a statutory deadline or a time limit
imposed by the Policy. Wis. Stat. § 631.83(1)(a) provides that
“[a]n action on a fire insurance policy must be commenced
within 12 months after the inception of the loss.” The phrase
“fire insurance” has been interpreted to include all types of
property indemnity insurance. Jones v. Secura Ins. Co., 249
Wis.2d 623, 638 N.W.2d 575, 577 n.5 (2002); Borgen v. Econ.
Preferred Ins. Co., 176 Wis.2d 498, 500 N.W.2d 419, 421 (Wis. Ct.
App. 1993). But this statute of limitations is not absolute;
parties to an insurance contract are free to alter the length of a
statute of limitations and the date that the limitation period
begins to run. See Keiting v. Skauge, 198 Wis.2d 887, 543 N.W.2d
565, 567 (Wis. Ct. App. 1995) (“Public policy in this state
permits parties to bind themselves by contract to a shorter
period of limitation than that provided for by statute.”)
(quoting State Dept. of Pub. Welfare v. Le Mere, 19 Wis.2d 412,
120 N.W.2d 695, 699 (1963)). This conclusion is bolstered by the
fact that § 631.83 explicitly prohibits insurance policies from (a)
limiting the time for beginning an action on a policy to less
than twelve months, (b) prescribing what court an action may
be brought in, and (c) providing that no action may be brought
under a policy. Wis. Stat. § 631.83(3). Accordingly, by its very
terms, the statute contemplates its modification between
16 No. 13-2580
parties in private contracts, provided any alterations comport
with the three prohibitions listed above. Just as policy language
determines how coverage is triggered, policy language also
dictates when an action may be brought.
The Chubb Defendants altered the limitation period for the
Strausses to initiate suit by diverging from the language found
in § 631.83(1)(a). The Wisconsin statute of limitations language
stating that a claim must be filed within one year “after the
inception of the loss” starts the clock running “from the date of
the damage suffered by the insured from any peril covered by
the policy of insurance.” Riteway Builders, Inc. v. First Nat’l Ins.
Co. of Am., 22 Wis.2d 418, 126 N.W.2d 24, 26 (1964). “Inception”
means “beginning; start; commencement,” and therefore, “the
phrase ‘inception of the loss’ rules out a construction which
would postpone the start of the period of limitation until the
insured’s loss is discovered, or should have been discovered.”
Borgen, 500 N.W.2d at 422. Here, if the Policy employed the
same language as that found in § 631.83, the Strausses’ claim
might be time-barred because it was filed well after one year
had passed from the beginning of the water infiltration.
But the Policy employs different language. Rather than
require claims to be filed within one year “after the inception
of the loss,” the Policy permits claims to be filed “within one
year after a loss occurs.” “After a loss occurs” is fundamentally
different from “after the inception.” “Inception of the loss”
clearly and unmistakably means the beginning of damage, not
to mention the fact that it has been unequivocally defined as
such by Wisconsin courts. On the other hand, “after a loss
occurs” is ambiguous as applied to a progressive loss and can
No. 13-2580 17
entirely reasonably be interpreted to mean after a loss com-
pletes. See Wood v. Allstate Ins. Co., 21 F.3d 741, 744 (7th Cir.
1994) (“after the date of loss” could plausibly mean either the
date on which a fire began or the date on which the fire was
extinguished). Because Wisconsin subscribes to the contract
tenet that ambiguities are to be construed in favor of coverage
for the insured, Johnson Controls, 784 N.W.2d at 586, we
conclude that the Strausses could have brought their claim at
any point up until a year after the water infiltration damage
halted.
In Wisconsin, under the continuous trigger theory, a
progressive loss “occurs continuously from exposure until
manifestation.” Soc’y, 607 N.W.2d at 346. Here, because the loss
was ongoing and occurred with each rainfall and because the
Policy itself states that “[c]ontinuous or repeated exposure to
substantially the same general conditions unless excluded is
considered to be one occurrence,” the loss, for purposes of the
statute of limitations, occurred all the way up until the damage
manifested in October 2010. The parties do not dispute that the
Strausses filed suit within one year of manifestation of the
water infiltration. Therefore, their suit is timely.
III. Conclusion
The Policy’s language mandates the use of the continuous
trigger theory for determining coverage. Similarly, the Policy’s
definition of “occurrence” and alteration of the statute of
limitations made the Strausses’ claim timely. For the foregoing
reasons, we AFFIRM the ruling of the district court.