Porn Actors' HIV Lawsuits Aren't Covered, Insurer Says

The insurer argues that it has already paid "appropriate medical expenses" related to the claims.
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Cameron Adams

The California State Compensation Insurance Fund says it has no duty to cover a porn studio that is defending lawsuits from three performers who allege they contracted HIV during video shoots, according to a motion filed Tuesday in federal court. 

"This case involves three injured workers who are attempting to get two bites at the same apple," writes attorney Jennifer Wellman, arguing that they're seeking both workers' compensation benefits and civil damages from their employer for the same injuries.  

John Doe, Cameron Adams and Joshua Rodgers sued Cybernet Entertainment's Kink.com in the summer of 2015, claiming that they contracted HIV while performing in pornographic videos two years earlier.

Cybernet had workers' compensation insurance through State Fund during the period in which the alleged injuries occurred. State Fund accepted the claim and argues it has already paid "appropriate medical expenses," which it is still defending before the Workers Compensation Appeals Board.

Cybernet asked the court for a declaration that State Fund is obligated to defend it in the workers' lawsuits under the employer's liability provision of the insurance policy — and, now, the insurer is fighting back with a motion for summary judgment that argues it has no duty to defend under the policy.

State Fund says there is no question that the five negligence-based causes of action in the performers' lawsuits aren't covered by insurance, and therefore limits its arguments to the claims related to fraud, emotional distress and battery. 

"[T]he plaintiffs allege that Cybernet’s intentional acts 'were despicable and committed knowingly, willfully and maliciously, with the intent to harm, injure, vex, annoy and oppress Plaintiff and with a conscious disregard of Plaintiff’s rights, health and safety,'" writes Wellman. The policy specifically excludes "damages or bodily injury intentionally caused or aggravated by" Cybernet, therefore State Fund argues the remaining claims aren't eligible for coverage either.

State Fund also argues the court should dismiss Cybernet's motion for partial summary judgment because it has not proven the workers were actually employees, not independent contractors — but says it doesn't need that claim to succeed on its own motion.

"[A]ll allegations in the lawsuits are covered by California’s workers’ compensation statutory framework and are expressly barred from employer’s liability coverage," argues Wellman. "As a result, the plaintiffs’ sole remedy with regard to their claims covered by the workers’ compensation system is to pursue their pending actions in the WCAB whether or not they are actually awarded benefits."

The full motion is posted below. 

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