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36 Journal of American Law // Spring 2015 ance claim." 18 If the documents being sought are "primarily and predominantly legal in nature and, in their full content and context, were made to render legal advice or services" to the carrier, they are protected. 19 In Reliance Ins. Co. v. American Lintex Corp., 20 the de- fendants asked the court to strip certain communications be- tween the plaintif insurer and its attorneys of the protection aforded by the attorney-client privilege. Te court identifed the subject material as documents (1) pertaining to legal ad- vice regarding the extent to which the defendants' insurance claim was covered by the policy, (2) pertaining to advice about correspondence the carrier should send to the defendants, (3) opinions regarding claims that the carrier might want to make, and (4) invoices for legal services. Te court held that the privilege applied to all of them, explaining that because the documents did not address the quantity, value, or degree of damage sustained by the defendants' property, they were not investigatory in nature and did not fall within the ambit of the cases that hold that where the attorney acts as an investi- gator, the privilege does not apply. Two recent decisions in New York have clarifed the scope of attorney-client privilege in the context of predenial coverage opinions. In National Union Fire Ins. Co. of Pitts- burgh, Pa. v. TransCanada Energy USA Inc., 21 the First De- partment of New York's Appellate Division afrmed the trial court's holding as to whether an insurance company properly withheld several documents that predated the denial of cov- erage by the insurance company. 22 Te trial court noted that there are three grounds on which an insurance company can withhold documents properly: work product protection, at- torney-client privilege, and the common interest exception. 23 In analyzing the attorney-client privilege in this context, the trial court found: Documents may constitute privileged attorney-client communications, even if made before the insurance company decides to deny coverage, provided that they are primarily of a legal character and not related to an insurance company's ordinary business activi- ties. (See All Waste Sys. V. Gulf Ins. Co., 295 A.D.2d 379, 380, 743 N.Y.S.2d 535 (2d Dept. 2002) (fnding that coverage legal opinions and draf disclaimer letters are attorney-client privileged communica- tions)). Determining whether documents fall with- 18 Id. at *9 (emphasis in original) (citations omitted). 19 All Waste Systems Inc., 295 A.D.2d at 380. 20 Reliance Ins. Co. v. American Lintex Corp., No. 00 Civ. 5568 (WHP)(KNF) , 2001 U.S. Dist. LEXIS 7140 (S.D.N.Y. May 31, 2001). 21 Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Ener- gy USA Inc., 114 A.D.3d 595 (1 st Dep't 2014). 22 See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Energy USA Inc., No. 650515/2010, 2013 NY Slip Op 31967(U) (Sup. Ct. Aug. 15, 2013). 23 Id. at *5-11. in this limited exception is factual, and requires in camera review of the documents. ( Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 NY2d 371, 378 (1991). 24 On this basis, the trial court found that most of the documents withheld were not covered by the attorney-cli- ent privilege. 25 However, there were certain documents the trial court held that were properly withheld on the basis of attorney-client privilege as they "contain communications between an attorney and client to obtain legal advice and, thus, are protected." 26 Te First Department afrmed the order of the trial court in its entirety. It held that the "motion court properly found that the majority of the documents sought to be with- held are not protected by the attorney-client privilege or the work product doctrine or as materials prepared in anticipa- tion of litigation." 27 Although it did not address the specifc documents that the trial court held were properly withheld on the basis of attorney-client privilege, its holding clarifes that it afrmed the decision of the trial court that those documents had been properly withheld from disclosure. Tis holding is in accord with the recent holding of the Second Department of New York's Appellate Division in VGFC Realty II LLC v. D'Angelo. 28 Tere, the court reviewed the trial court's order that directed the insurer to produce counsel's predenial coverage opinions. Te Second Depart- ment held that three coverage opinions were "primarily and predominantly legal in nature and were made in order to ren- der legal advice or services" and are "absolutely immune from disclosure pursuant to the attorney-client privilege." Tere- fore, the First Department and Second Department are in ac- cord that if the documents prepared by counsel are primarily or predominantly legal in nature and were created to render legal advice, they are immune from disclosure. In California, the courts conduct a "dominant purpose" test in determining whether a coverage opinion is privileged. 29 "Tus, 'the attorney-client privilege [does] not apply where the attorney was merely acting as a negotiator for the client, or merely gave business advice, or was merely acting as a trust- ee for the client.'" 30 In the insurance context, this analysis be- comes complicated when the opinion was prepared for more than one audience or when an insurer hires an attorney both to provide a legal opinion and to serve as a claims professional. 24 Id. at *8-9. 25 Id. at *11-12. 26 Id. at *12. 27 Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Energy USA Inc., 114 A.D.3d 595, 595 (1 st Dep't 2014) (emphasis added). 28 VGFC Realty II, LLC v. D'Angelo, 114 A.D.3d 765 (2d Dep't 2014). 29 See McAdam v. State Nat'l Ins. Co., No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *8-9 (S.D. Cal. Mar. 21, 2014). 30 Clark v. Superior Court, 196 Cal. App. 4 th 37, 37(2011).