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In Strauss v. Chubb Indemnity Insurance Co., the U.S. Court of Appeals for the Seventh Circuit (in a case applying Wisconsin law) recently denied en banc review of a panel’s earlier holding that an insured property owner could recover for an unknown, ongoing loss under all policies in effect during 16 years of undiscovered water infiltration.
The ruling has potentially far-reaching positive implications for policyholders as it affects various sources of recovery, as well as scope of notice issues. Because the Seventh Circuit based its holding on common policy definitions of “occurrence” and “loss,” its application of a continuous trigger opens the door for policyholders to obtain coverage for ongoing losses that occur over several policy periods and, possibly, to spread those losses over several policy periods and insurers. The extent to which this decision may be binding or persuasive authority in other jurisdictions will be played out in coming years.