SAN FRANCISCO — Kink.com plans on appealing a federal judge’s ruling that could force the BDSM content producer to defend itself against suits brought by three former performers who claimed they contracted HIV during shoots.
On Friday, U.S. Judge James Donato granted Atain Specialty Insurance Co.’s motion for summary judgment after he found that a “physical-sexual abuse exclusion” exempts the insurer from covering claims arising from sexual activity.
Kink counsel Karen Tynan told XBIZ today that as a result of the declaratory ruling for summary judgment she’ll file a notice of appeal next week.
“From the beginning these were claims that had no scientific basis — with testing, it's fairly easy to figure out if anyone on-set had HIV, let alone transmitted it — and were roundly dismissed, even in the the press,” Tynan said.
“But a BDSM company — even one that keeps extensive records on everything from consent to condom preference — has to deal with a lot of ingrained confusion and bias outside the Armory walls.”
Tynan said that she thought the claimants — former performers Cameron Bay, Rod Daily and an unidentified John Doe — had been counting on that confusion by making “sensational allegations in their original filings”
“Not surprisingly for an insurance company, Attain has been looking for a way not to have to pay for costs associated with fighting these claims, so they cited a sexual abuse exclusion. But the exemption was meant for insurance policies for schools and churches, not adult sets.”
In the case, Atain sued Kink CEO Peter Acworth and his companies in November 2015, claiming it has no duty to cover litigation costs related to the suits filed by the three performers who each claimed they contracted HIV while filming various adult videos.
All three claimed in separate suits that they were subjected to unprotected sex with members of the general public and told they’d be out of a job if they asked to use condoms.
The suits each sought unspecified compensatory and punitive damages, while alleging negligence, fraudulent representation, civil conspiracy to commit fraud, negligent supervision, intentional infliction of emotional distress and premises liability, among other charges.
Bay alleged in her claim that she likely became infected after exposed to bloodborne pathogens on a PublicDisgrace.com production in July 2013.
Bay conditionally settled her suit against the studio in mid-October; however, terms of the proposed settlement have not been made public.
Daily, who was said to have performed exclusively in gay and TS scenes during his porn career, claimed he was infected in August 2013 after he shot for Kink on three occasions, including for the websites TSSeduction.com, KinkMen.com, BoundInPublic.com and NakedKombat.com. Daily’s case is scheduled to go to trial on May 14.
Doe claimed he worked on a BoundInPublic.com shoot in January 2013 and later found that he was infected with HIV. His case is scheduled to go to trial on Aug. 6.
Donato in his decision on Friday said that the language of the policy’s “physical-sexual abuse exclusion” is not ambiguous in the context of Kink’s policy and the circumstances of the case.
“Because the contractual language is clear and explicit, it governs,” he wrote in a six-page brief.
Donato’s ruling comes about three weeks after Kink suffered another setback in federal court over insurance issues involving the three performers.
In that case, U.S. District Judge Yvonne Gonzalez Rogers found that California’s State Insurance Compensation Fund and Seneca Insurance Co. also have no duty to defend Kink.com in HIV-related suits.
