New Hollywood Lawsuit Focuses On Whether Operation Protective Edge Was A War
David Lange
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One of my favorite scenes from Seinfeld (and there are many) was the following, in which Seinfeld and Kenny Bania argued over whether soup is a meal.
We are now seeing this scene play out in real life, except the soup is Operation Protective Edge, Seinfeld is Universal Cable Productions, and Bania is Atlantic Specialty Insurance Company.
Note: the following report is written really poorly when it comes to what happened during Operation Protective Edge (e.g. separating Israeli victims into civilians and combatants but not so for the palestinian ones; referring to terrorists as ‘militants’; suggesting Hamas only began firing rockets after we accused them of murdering our boys) but that is not the subject of this post.
The production of a USA Network show was suspended due to Hamas rocket fire into Israel, and now comes a clash over the meaning of “war.”
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Of course, it’s not quite that simple, as evidenced by a clash between Universal Cable Productions and Atlantic Specialty Insurance Company over USA Network’s Dig, a mystery-thriller miniseries set in Jerusalem that premiered in 2015. That show about an American FBI agent investigating a death wasn’t a particularly critical or commercial success, and might be forgotten but for its shot at immortality thanks to what happened in the summer of 2014.
In June of that year, three Israeli teenagers were kidnapped. When the bodies were found during an extensive search operation, Israel attributed the deaths to Hamas militants. The Palestinian group didn’t take kindly to such allegations and began firing rockets into Israel. In response, on July 8, 2014, Israel conducted its own offensive campaign, Operation Protective Edge. More than a week later, Israel’s ground forces began an invasion of Gaza. Eventually, by the time both sides agreed to a cease- fire Aug. 26, 2014, about 2,220 Palestinian had died as had 67 Israeli soldiers and six Israeli citizens.
In the midst of all this, producers were filming Dig. The head of security for NBCUniversal was closely monitoring events and began sending emails about the building tension. By July 10, the security assessment came that the crew’s safety could no longer be guaranteed, and the studio made the decision to postpone shooting. One week later, as the fighting showed no signs of abating, NBCU decided to move production out of Israel. Dig later completed filming in New Mexico and Croatia.
Then came Universal’s attempt to get Atlantic to cover its “extra expenses,” and when the insurer refused, saying that war was excluded under the policy, Universal filed a lawsuit. The studio contends that the Hamas rocket fire amounted to terrorism, and as such, there is no exclusion. Atlantic not only sees the events in question as warlike activity, but is also arguing that it doesn’t have to cover insurrection, rebellion, revolution or usurpation of power, nor cover use of a weapon of war including atomic fission or radioactive force.
On Monday, both sides filed summary judgment motions, not to mention thousands of pages of exhibits including U.S. Department of Treasury press releases, U.S. Department of State travel advisories, the U.S. Nuclear Regulatory Commission’s take on “atomic energy” and “radioactivity,” and an article headlined, “How much did the September 11 terrorist attack cost America?” Oh yeah, also logged as an exhibit is Merriam-Webster’s definition of “war.”
“Plaintiffs prefer to focus narrowly on the actions of only one of the combatants ― Hamas ― to the exclusion of the other ― Israel ― and characterize the conflict as mere terrorism in the hope of avoiding the war exclusions,” states Atlantic in its brief (read in full here). “This position ignores the reality of warfare in the twenty-first century, and the views of their own representatives involved in the filming.”
Universal, of course, has a different take.
“At a time when insurer support was most critical — i.e., when the physical safety of cast and crew was at risk — Atlantic turned its back on Universal and disclaimed any responsibility for the claim,” states its own court papers (read in full here).
The studio has three main arguments why what happened in Israel in 2014 constitutes “imminent peril,” but does not fall within the scope of the insurance policy’s “war exclusions.”
First, Universal submits, the exclusions only apply in conflicts between two sovereign or quasi-sovereign states, and here, the U.S. government has instead designated Hamas a terrorist organization. According to the studio, the determination is binding on the judiciary under the political question doctrine and is not subject to second-guessing in civil litigation disputes.
Next, Universal posits that “Hamas is not attempting to seize control of Israel’s government so that it can govern Israel, a necessary prerequisite of the exclusion for ‘insurrection, rebellion, revolution, [and] usurpation of power.’ Instead, according to its own mission statement, Hamas seeks to destroy the state of Israel altogether.”
Third, and finally, Universal basically argues that for whatever Hamas did in Israel, the group did not drop a nuclear weapon. The studio adds, “Moreover, regardless of whether atomic fission/radioactive force is a necessary prerequisite, Hamas used weapons of terror, not weapons of war.”
Oh, but the fog of war — or terrorism — doesn’t end there.
As most people know, there are countless books about the tensions between Israelis and Palestinians. Political leaders throughout the world have tried unsuccessfully to resolve the situation. Well, eat your heart out, Jared Kushner, because Atlantic’s lawyer Michael Keeley, in his court brief, tells the judge, “Because this case centers on Israel and Palestine, it is helpful to begin with a brief history.”
What follows is a page — yes, just one page — that recounts what happened between the emergence of Palestinian political identity in 1923 and Hamas’ gaining of control over the Gaza strip a decade ago. (Who says this is more complicated?) Then, comes a section titled, “The 50-Day War,” a descriptor of Israel in the summer of 2014.
According to the insurance company, Universal is attempting to apply a “hyper-technical definition” of “war,” but that’s obtuse.
Writes Keeley, “Under the common, ordinary meaning of the word, which governs in California, the conflict was a war, as evidenced by — among other things — the many news articles calling the conflict a war, including those by news organizations bearing the NBC name: MSNBC and NBC News.”
Atlantic also brings up former Secretary of State John Kerry’s use of the word “war,” predecessor Hillary Clinton’s own use and even that of Israeli soldiers’ use. The insurance company also points to case law, although so does Universal.
And nothing is off-limits.
“Here, while the acts of 9/11 were horrific, so were the events of the 50-Day War,” states Atlantic. “While approximately 3,000 people died in 9/11, approximately 2,200 died in the 50-Day War and an additional 11,000 Palestinians were wounded and over half a million people were displaced. The events of 9/11 occurred on a single day, while the conflict between Israel and Hamas lasted for a full fifty days. And far more traditional weapons of war were used by Israel and Hamas as opposed to Al-Qaeda on 9/11. Other comparisons between these two horrible events need not be made to state the obvious: war is war.”
Universal thinks there’s something here in the 9/11 analysis to support its own position.
“If size or scope of loss were sufficient to qualify hostilities as war, then the 9/11 attacks, which resulted in 2,996 deaths and caused at least $10 billion in property and infrastructure damage, ostensibly would have constituted war,” states the studio. “But the insurance industry did not exclude 9/11 losses based on application of any war exclusions. In short, without the limiting principle that the hostilities or conflict be between two sovereigns or quasi-sovereigns, the Exclusion would extend far beyond its intended scope and improperly lead to absurd results.”
Universal’s lawyer Lucia Coyoca adds, “In the post 9/11 world, insureds reasonably expect the two risks [terrorism and war] will be treated separately, and underwritten and evaluated by an insurer separately. To conflate the two, as Atlantic is doing here, means that an insured who pays for terrorism insurance is not getting the benefit of its bargain if coverage is precluded by the war exclusions.”
For me, it is clear: we are engaged in a very real war with Hamas and other terror groups, and this was part of that war. During Operation Cast Lead, they launched more than 4,500 rockets and mortars, approximately 4,000 of which were deliberately directed at millions of Israeli civilians, causing death, injuries and property damage. This is not just an act of terrorism. As for the contention Hamas is a terror organization and not a sovereign or quasi-sovereign state actor, they exercises de facto authority over persons within that territory.
Ugh, my head hurts.
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David Lange
