Insurer does not have to defend HIV claims in porn industry

A three-judge panel with the 9th U.S. Circuit Court of Appeals on Friday ruled that the insurer for an entertainment company that produces pornographic films does not have to defend in court civil lawsuits alleging negligence filed by actors who contracted human immunodeficiency virus during filming.

The judges examined two exclusions in State Compensation Insurance Fund policies for San Francisco-based Cybernet Entertainment LLC that barred coverage under the employer’s liability portion of the policy: one that excluded “any obligation imposed by a workers’ compensation . . . law” and one that provides that coverage does not extend to “damages or bodily injury intentionally caused or aggravated by” the internet company, according to documents in Cybernet Entertainment LLC v. State Compensation Insurance Fund, filed in San Francisco.

Facing three civil suits filed by actors, Cybernet filed a third-party complaint against State Fund seeking a declaration that the insurer had a duty to defend, which a district court subsequently ruled against.

In affirming that ruling, the 9th Circuit judges held that the negligence claimed in the civil actions fall in line with workers compensation: “… in essence, that Cybernet did not take adequate steps to protect its performers and prevent the spread of sexually transmitted diseases (STDs) and HIV during pornographic shoots, causing injury. The plaintiffs alleged that Cybernet did not provide adequate personal protective equipment, such as condoms, to performers; did not test certain performers; and otherwise violated California regulations meant to prevent the spread of STDs and HIV in pornographic shoots. We hold that the acts and injuries alleged in the foregoing causes of action fall within the compensation bargain because the gravamen of each is that Cybernet did not maintain a safe workplace. The remedy for such workplace-safety claims is workers compensation.”

The ruling also found that the bodily injury claims are also barred by the second exclusion cited in the case.

“Because either (exclusion) bars coverage under the Employer’s Liability portion of the Policy for each of the causes of action alleged against Cybernet in the State Court Actions, State Fund did not have a duty to defend Cybernet in those actions,” the ruling states.