From the creators of Homeland and Heroes, comes a fascinating lawsuit that asks whether Hamas’s attacks on Israel are “war” or “terrorism.” And it is all wrapped up in a run-of-the-mill insurance dispute.
Dig began filming in the summer of 2014. According to the complaint filed last week in the Central District of California, “Dig is about an American FBI agent based in Jerusalem whose investigation of an American’s death in Jerusalem leads to the discovery of a two thousand year-old conspiracy.” The show was to be filmed on location, but just as production wrapped on its pilot episode, security in Israel deteriorated. The kidnapping and murder of three Israeli teenagers ignited tensions, and as Israel cracked down in the West Bank, Hamas stepped up its rocket attacks from Gaza. The fighting escalated and Israel deployed Operation Protective Edge, an air and ground campaign in Hamas-controlled Gaza. The year saw the highest civilian death toll since 1967, according to a United Nations report.
Now a federal court in California is being asked to determine whether violence perpetrated inside Israel by Hamas constituted “war” or “terrorism.” NBCUniversal held a policy with Atlantic Specialty to insure the production of Dig. When the producers determined that work was no longer safe for cast and crew because of rocket fire from Hamas, filming was postponed and eventually completed in Croatia and New Mexico. NBCUniversal claims that the postponement and relocation cost it more than $6.9 million.
The insurance policy covered “extra expenses”—those incurred “as a result of the interruption, postponement, cancellation, relocation, curtailment or abandonment” of the production due to “imminent peril.” The June 20 complaint alleges that although Atlantic acknowledged that the expenses resulted from imminent peril, it refused to pay. According to Atlantic, the expenses fell under the policy’s “war exclusion”:
This policy does not insure against loss or damage caused directly or indirectly by:
- War, including undeclared or civil war; or
- Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or
- Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
- Any weapon of war including atomic fission or radioactive force, whether in time of peace or war . . .
The plaintiffs argue that the exclusion is inapplicable because Hamas is a recognized terrorist organization and not a sovereign or quasi-sovereign power. This was not “war,” but rather “terrorism,” which was not excluded from the policy, according to NBCUniversal:
In order for the exclusion to apply . . . Atlantic must establish that the events in Israel constituted a war or war-like activity between two sovereign or quasi-sovereign nations. Under the political question doctrine, only the United States government can recognize a sovereign nation or government or, conversely, designate an entity a terrorist organization. . . . Atlantic has ignored the United States government position and applicable law. It claims Hamas is a sovereign or quasi-sovereign government over the Gaza Strip territory . . . in a self-serving attempt to invoke the war exclusion and avoid its coverage obligations.