Judge Rules California Fund Doesn't Have to Defend Porn Studio From Actors' HIV Suits

Sex films are like sex in at least one respect. It's far more safe to perform while protected. One porn studio just found out that it's not. On Monday, a federal judge ruled on summary judgment that California's State Insurance Compensation Fund has no duty to defend Cybernet from certain lawsuits.

Cybernet produces adult films and runs the website Kink.com, which specializes in depictions of various sexual fetishes including bondage. The company is facing at least three lawsuits from actors who say they contracted HIV while performing. In response to the litigation, Cybernet looked to the State Fund to provide cover.

State Fund, in turn, argued it had no responsibility to indemnify this porn studio.

In her decision (read in full here), U.S. District Court Judge Yvonne Gonzalez Rogers first analyzes whether the actors' claims against Cybernet are preempted because workers' compensation claims provide the exclusive remedy for injuries. This brings the judge to examining whether there was any intentional conduct that would bring Cybernet beyond the boundaries of workers' comp.

"In this regard, the Court considers plaintiffs’ respective complaints which effectively allege two types of conduct: non-intentional and intentional," writes Rogers. "Thus: Doe, Adams, and Rogers each allege that they understood that Cybernet would require performers to use condoms and other safety barriers and 'ensure that [plaintiffs were] ... empowered to stop or alter a scene at any time.' Plaintiffs further aver that they experienced several incidents of unexpected and aggressive behavior which plaintiffs were powerless to control. Plaintiffs assert that each contracted HIV during the above-referenced incidents and that they were not the type of performances in which plaintiffs had agreed to perform."

Rogers finds these claims, based on the alleged intentional conduct of Cybernet, are not necessarily preempted by the exclusive remedy provision.

However, the judge then turns to the terms of the Cybernet's policy with State Fund. One aspect of the policy was an exclusion for damages or bodily injury intentionally caused or aggravated by the insured. The judge thus concludes that no potential for coverage exists in light of the plain language of the policy.

"Cybernet argues in its supplemental brief ... that [the prior case of] Michaelian is distinguishable because here plaintiffs also allege non-intentional torts, namely negligence, negligence per se, negligent supervision, and negligent hiring and/or retention," writes Rogers. "However, Cybernet overlooks the fact plaintiffs’ claims arising from these non-intentional torts are preempted by the exclusive remedy provision and thus State Fund has no duty to defend with regard to such claims."

It's almost like the porn industry's equivalent of a Catch-22.