Nothing in a standard CGL policy distinguishes between class actions and other types of underlying products lawsuits. Nevertheless, the unique requirements of class action pleading sometimes lead to disputes between CGL insurers and their insureds as to whether a class action complaint triggers the duty to defend. This is particularly true with regard to class action complaints in which disappointed consumers seek damages and other relief because the product they purchased did not comport with their expectations. Given that a class will not be certified without a showing that the class representative’s claims satisfy commonality and typicality requirements, class action complaints often do not expressly allege individualized bodily injury or property damage. That is not to say, however, that a putative class action complaint could not lead to covered damages for bodily injury or property damage. After all, many consumers are disappointed in the products they purchased because the products cause property damage or bodily injury, even if the amount of damage or injury is insufficient to warrant an individual lawsuit. Moreover, not all class action complaints lead to certification, thereby potentially resulting in individual damage claims, and some jurisdictions will permit certification of a class only for liability if “the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses[.]”
Courts across the country agree that a CGL insurer’s duty to defend, often referred to as “litigation insurance,” protects against the expense of defending lawsuits that present potentially covered liability. This protection applies regardless of whether the allegations in the underlying lawsuit are false or fraudulent and regardless of whether the insured is likely to be liable for covered damages. This article provides an overview of how courts have evaluated CGL insurers’ duty to defend consumer class actions and explains why the standard for evaluating the duty to defend a consumer class action is no different from the standard for evaluating the duty to defend any other type of product lawsuit.
CGL Insurers Must Defend Potentially Covered Claims
Subject to a series of enumerated exclusions, CGL policies broadly insure against, among other things, liability for damages resulting from “property damage” or “bodily injury” that happens during the policy period and is caused by an “occurrence.” CGL policies typically define “bodily injury” to include “bodily injury, sickness or disease sustained by a person”; “property damage” to include “physical injury to tangible property”; and “occurrence” to include “an accident. . . .”
Assuming an insurer is not estopped from denying coverage due to a breach of its duty to defend, a CGL insurer’s duty to indemnify arises only if the insured’s liability was based on some evidence of actual bodily injury or property damage. In contrast to the narrow duty to indemnify standard, an insurer’s duty to defend is very broad. As one commentator explained, a CGL policy imposes a broad obligation on the insurer to defend any suit brought against its insured that presents the possibility that the insured could incur covered legal liability, regardless of the likelihood that the insured ultimately will be held liable for covered damages based on adjudicated facts.
Put differently, “the duty to defend arises whenever allegations in a suit brought against the insured create the potential for covered liability.” Therefore, given the breadth of the duty to defend, even a completely meritless putative class action consumer suit will trigger a CGL insurer’s duty to defend if the underlying complaint alleges (1) that the insured may be liable for damages, (2) because of bodily injury or physical injury to third-party property that may have happened during the policy period, (3) caused by an unexpected happening or accident (an occurrence).
Likelihood of Class Certification Is Irrelevant
Because the rule that sets forth the requirements for class action certification, Federal Rule of Civil Procedure 23 (and its state equivalents), requires “questions of law or fact common to the class,” class action complaints often do not focus on individual damages or injuries. However, class action complaints can allege property damage or bodily injury, and it is improper to read such potentially covered damages out of the complaint simply because a class involving individualized injuries or damages may not ultimately be certified. Because the duty to defend analysis is based on factual allegations rather than legal theories or the underlying plaintiff’s likelihood of success, whether a class is suitable for certification should not come into play in evaluating the duty to defend.
Along these lines, there are several reported decisions in which courts have held that they cannot consider whether a putative class as alleged in an underlying complaint could be certified as part of their duty to defend analysis. In one such case, the U.S. Court of Appeals for the Eleventh Circuit found that a CGL insurer was required to defend a putative class action of nursing home residents alleging improper care by operators of nursing home facilities because “[t]he likelihood that a plaintiff will prevail in its covered claims or that a class will be certified does not enter into the [duty to defend] calculus” and there is nothing to “even remotely suggest that the potential for coverage created by a class action is qualitatively different from the potential for coverage created by an individual action.” In so ruling, the appellate court reversed a district court ruling that the duty to defend would not arise until the class was certified because the allegations of the class representative did not fall within the policy period at issue.
Other courts similarly have held that whether a class is suitable for certification is immaterial to the duty to defend analysis. By way of example, reversing a trial court ruling that a CGL insurer was not required to defend a putative consumer class action alleging that the insured had sold corrugated stainless steel tubing without “sufficient thickness to protect against combustion after a lightning strike,” one Massachusetts appellate court explained that “[t]he fact that this is a class action complaint does not change our analysis” because we do not believe that an insured must demonstrate that the plaintiffs will satisfy rule 23 in order to receive a defense from its insurer. Just as in any other type of action, the insurer’s duty to defend is determined by looking to the face of the complaint. . . . In the context of a class action complaint, we understand that principle to mean that we should avoid anticipating the possible outcome of the certification process.
Putative Class Members’ Claims Must Be Considered
Just as an insurer cannot refuse to defend a putative class action simply because the class may not be suitable for certification, an insurer cannot refuse to defend simply because the named class representative does not allege a potentially covered claim. Rather, the insurer must consider the factual allegations as they relate to all putative class members’ claims. As the court in Beaver observed, “no authority found in Florida law or, for that matter, anywhere else has concluded that claims by putative class members are somehow insufficient to trigger an insurer’s duty to defend.”
This issue arises often in the context of whether property damage or bodily injury potentially occurred during the policy period. In that situation, the evaluation of whether any of the putative class members’ claims allege a potentially covered claim that triggers the duty to defend is rooted in how the underlying complaint defines the putative class. Where the class period in which bodily injury or property damage may have occurred overlaps with any part of the CGL insurer’s policy period, the requirement of potential bodily injury or property damage during the policy period should be satisfied, even if none of the named class representatives’ allegations of bodily injury or property damage potentially occurred during the policy period.
This principle is illustrated in a decision by the U.S. District Court for the Western District of North Carolina in which the court rejected an insurer’s argument that the court should focus only on the class representative’s specific allegations of injury and “have the Court impose upon [the insured] an affirmative obligation to point to language in the underlying complaint that states the alleged wrongdoing took place during the period of coverage provided before any duty to defend can exist.” Explaining that such a rule would “deprive the insured of the benefit of insurance coverage bargained for in the contract,” the court held that “a putative class action against a producer of drywall in operation since 1993, alleging defects in the drywall produced on behalf of all homeowners in America,” triggered the duty to defend under all CGL insurance policies in effect after 1993 even though “the complaints of the Drywall Lawsuits do not explicitly allege wrongdoing by [the insured]. . . .” The court’s rationale was that “to focus solely on the named plaintiff in this instance would completely ignore the general notice pleading standards of the Federal Rules of Civil Procedure as well as the underlying purposes of class action litigation.”
An Express Claim for Covered Damages Is Unnecessary
Consumer product class actions may seek damages primarily for disappointed commercial expectations rather than for bodily injury or property damages. However, if the prayer for relief leaves open any potential for damages because of bodily injury or property damage, the court likely will find a duty to defend even if there is not an express request for covered damages.
For example, the U.S. District Court for the Northern District of Illinois found that a consumer class action seeking damages due to alleged defects in supposedly “leak proof” baby bottles sold by the insured was potentially covered for purposes of triggering a CGL insurer’s duty to defend even though the underlying complaint did not expressly seek damages because of third-party property damage. Although the underlying class plaintiffs in that case alleged that had they “known that the Bottles were not actually leak-proof, they either would not have purchased the Bottles or would not have paid the price they paid for the Bottles” and sought damages on that basis, the court found significant that the underlying “complaint include[d] specific allegations of property damage in addition to economic injury.” Because the underlying plaintiffs “never restricted their damages requests in their complaint to only economic damages,” the combination of a handful of allegations providing examples of potential property damage caused by the products (e.g., “when the Bottles are inverted or shaken, liquid escapes” and “liquid will be released”), coupled with a prayer for relief in the underlying complaint “generally requesting an award of ‘damages’,” was sufficient to trigger the duty to defend.
In another case, the court found that a CGL insurer was obligated to defend an underlying consumer fraud class action alleging that the insured defectively designed and unfairly marketed Bluetooth headsets, which the underlying claimants alleged could cause noise-induced hearing loss. The underlying claimants did not seek damages directly for bodily injury; rather, they claimed that the headsets were defectively designed and unfairly marketed. Nevertheless, the court found that the insurer had a duty to defend because, “but for the potential for bodily injury caused by the Bluetooth Headsets, there would be no viable claims for defective design, unfair marketing or breach of warranty.”
In some instances, a prayer for injunctive relief could satisfy the “damages” requirement. In Omega Flex, the class complaint requested equitable relief, requiring the insured to notify class members of their right to seek recovery for property damage related to a defective steel tubing product. The court ruled that “injunctive relief that requires the insured to incur costs to remedy covered losses is ‘damages’ within the scope of the policy.” This is not to say that the damages requirement is not important to the duty to defend analysis. To be sure, some courts have found no duty to defend because the putative class action complaint did not seek damages because of bodily injury or property damage. However, in most of these cases, the underlying complaints expressly stated that the plaintiffs were not seeking damages for bodily injury or property damage.
Bodily Injury or Property Damage
A class action that does not contain any allegations of bodily injury or property damage typically does not trigger an insurer’s duty to defend. For example, explaining why it found no duty to defend a putative consumer class action alleging that the insured’s BPA-containing bottles could cause bodily injury, the U.S. Court of Appeals for the Seventh Circuit stated that “plaintiffs never allege[d] that they or their children ever used the products or were actually exposed to the BPA.” As the court continued, “even if the underlying plaintiffs proved every factual allegation in the underlying complaints, the plaintiffs could not collect for bodily injury because the complaints do not allege any bodily injury occurred. . . . The closest the complaints come to alleging bodily injury is the allegations that [the insured] was aware of a large body of scientific research . . . that BPA exposure can cause physical harm.”
However, to trigger the duty to defend, allegations of property damage or bodily injury need not be detailed nor the main focus of the complaint, and allegations relating to bodily injury or property damage incurred by individual class members, even for illustrative purposes, may be sufficient to trigger the duty to defend. For that reason, the court in Omega Flex found that allegations suggesting that some class members had already incurred property damage were sufficient to trigger the duty to defend. And in Thermos, a class action alleging that consumers had paid a premium for leak-proof bottles that actually leaked, triggered the duty to defend because the complaint included allegations that leaking bottles would damage the contents of diaper bags.
A CGL insurer’s duty to defend arises whenever there is an underlying claim for potentially covered bodily injury or property damage. As illustrated by the cases discussed in this article, the duty to defend a consumer class action is subject to the same interpretative rules as the duty to defend single-plaintiff product liability lawsuits. When those rules are followed, the key inquiry is not whether all or most members of the putative class potentially suffered bodily injury or property damage during the policy period. Rather, the relevant inquiry is whether the complaint contains any factual allegations that, if true, could lead to the insured being held liable to one member of the putative class for covered bodily injury or property damage.
Seth Lamden is a partner with Neal, Gerber & Eisenberg LLP in Chicago, Illinois.
 Seth Lamden is a partner in the insurance policyholder practice group of Neal, Gerber & Eisenberg LLP in Chicago.
 See Friedman v. Guthy-Renker, LLC, No. 2:14-cv-06009-ODW(AGRx), 2016 U.S. Dist. LEXIS 149900 (C.D. Cal. Oct. 28, 2016).
 See Carrol v. S.C. Johnsons & Son, Inc., No. 17-cv-05828, 2018 U.S. Dist. LEXIS 57052 (N.D. Ill. Mar. 29, 2018).
 See Pohutsky v. Pella Corp., No. 2:14-mn-00001-DCN, 2015 U.S. Dist. LEXIS 65033 (D.S.C. May 19, 2015).
 See Daniel v. Tootsie Roll Indus., LLC, 2018 U.S. Dist. LEXIS 129143 (S.D.N.Y. Aug. 1, 2018).
 See In re Subway Footlong Sandwich Mktg. & Sales Practices Litig., 869 F.3d 551 (7th Cir. 2017).
 See Hartford Fire Ins. Co. v. Thermos L.L.C., 146 F. Supp. 3d 1005 (N.D. Ill. 2015).
 CGL policies were referred to as comprehensive general liability policies from the 1960s to 1986, when the Insurance Services Office, Inc., released Commercial General Liability Form No. CG 00 01 11 85.
 This article focuses solely on the duty to defend and does not discuss CGL insurers’ duty to indemnify.
 See Fed. R. Civ. P. 23.
 Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) (affirming certification of liability class alleging that front-loading washing machines had a design defect that caused mold and mildew to develop).
 See, e.g., Capital Envtl. Servs., Inc. v. N. River Ins. Co., 536 F. Supp. 2d 633, 640 (E.D. Va. 2008) (“insureds pay a premium for what is partly ‘litigation insurance’ designed to protect the insured from the expense of defending suits brought against him. . . .”) (punctuation omitted).
 ISO Commercial General Liability Form No. CG 00 01 04 13, p. 1 of 16.
 ISO Commercial General Liability Form No. CG 00 01 04 13, p. 13 of 16.
 ISO Commercial General Liability Form No. CG 00 01 04 13, p. 15 of 16.
 ISO Commercial General Liability Form No. CG 00 01 04 13, p. 15 of 16.
 3-17 New Appleman on Insurance Law Library Ed. 17[b][i] (2018).
 3-17 New Appleman on Insurance Law Library Ed. 17[b][i] (2018).
 Depending on controlling insurance law, even a claim for only injunctive relief may trigger an insurer’s duty to defend. See, e.g., Country Mut. Ins. Co. v. Bible Pork, Inc., 2015 IL App (5th) 140211, ¶ 22 (insurer required to defend suit seeking “equitable relief in the form of the declaration of a nuisance and also ‘other relief deemed appropriate’”).
 Fed. R. Civ. P. 23(a)(2).
 Hartford Accident & Indem. Co. v. Beaver, 466 F.3d 1289, 1296 (11th Cir. 2006).
 Beaver, 466 F.3d at 1290.
 See, e.g., LensCrafters, Inc. v. Liberty Mut. Fire Ins. Co., No. C 04-1001, 2005 U.S. Dist. LEXIS 47185, at *40 n.9 (N.D. Cal. Jan. 20, 2005) (“Liberty fails to cite any case that holds that the mere fact that a class action complaint has yet to be certified renders such claims ‘too speculative’ to trigger the insurer’s duty to defend.”); Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 496 (Tex. 2008) (propriety of class certification “is not relevant to the duty to defend”); Omega Flex, Inc. v. Pac. Emp’rs Ins. Co., 78 Mass. App. Ct. 262, 268 (2010) (“The fact that some of the claims may ultimately be deemed unsuitable for class treatment should not deprive the insured of the benefit of a defense. . . .”).
 Omega Flex, Inc., 78 Mass. App. Ct. at 268.
 Beaver, 466 F.3d at 1296.
 Beaver, 466 F.3d at 1295–96.
 New NGC, Inc. v. ACE Am. Ins. Co., 105 F. Supp. 3d 552, 568 (W.D.N.C. 2015).
 New NGC, Inc., 105 F. Supp. 3d at 567.
 New NGC, Inc., 105 F. Supp. 3d at 568.
 See, e.g., Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487 (Tex. 2008) (class plaintiffs’ request for replacement headsets constituted damages for purposes of duty to defend).
 See Hartford Fire Ins. Co. v. Thermos L.L.C., 146 F. Supp. 3d 1005, 1006 (N.D. Ill. 2015).
 Thermos L.L.C., 146 F. Supp. 3d at 1014.
 Thermos L.L.C., 146 F. Supp. 3d at 1014–15 (“But more importantly, the [underlying] complaint did not need to include a specific request for relief for covered property damage, as such a specific request is not required as long as the allegations of the complaint provide a potential for coverage.”).
 Plantronics, Inc. v. Am. Home Assurance Co., No. 07-6038- PVT, 2008 U.S. Dist. LEXIS 88921, at *4 (N.D. Cal. Oct. 20, 2008).
 Plantronics, Inc., 2008 U.S. Dist. LEXIS 88921, at *4.
 Plantronics, Inc., 2008 U.S. Dist. LEXIS 88921, at *7.
 See Omega Flex, Inc. v. Pac. Emp’rs Ins. Co., 78 Mass. App. Ct. 262, 268 (2010).
 See Omega Flex, Inc., 78 Mass. App. Ct. at 268.
 See Upper Deck Co. v. Fed. Ins. Co., 358 F.3d 608, 615 (9th Cir. 2004).
 See, e.g., Sony Comput. Entm’t Am., Inc. v. Am. Home Assurance Co., 532 F.3d 1007, 1020 (9th Cir. 2008) (underlying complaint “specifically denied any claims of physical injury to discs inserted into the PlayStation 2”); Low v. Golden Eagle Ins. Co., 99 Cal. App. 4th 109, 113–14 (2002) (underlying complaint “expressly disclaim[ed] any interest in seeking recovery of damages for [the type of damages] . . . required to trigger coverage and a related duty to defend under the policy . . .”).
 Medmarc Cas. Ins. Co. v. Avent Am., Inc., 612 F.3d 607, 610, 615 (7th Cir. 2010).
 Avent Am., Inc., 612 F.3d at 615.
 See, e.g., Avent Am., Inc., 612 F.3d at 614–15.
 Hartford Fire Ins. Co. v. Thermos L.L.C., 146 F. Supp. 3d 1005, 1014–16 (N.D. Ill. 2015).