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November 10, 2016

Kink Scores Victory In HIV Lawsuit Costs

SAN FRANCISCO—One of the claims made by proponents of Prop 60 was that there were performers who had become HIV-positive on California porn sets since the last confirmed transmissions in 2004 from then-performer Darren James. Among their "evidence" was the lawsuit brought by one "John Doe" in April of 2015, wherein he claimed that had been infected with HIV while shooting a web scene for Kink's "Bound In Public" series. Thereafter, two more performers claimed to have been exposed on Kink sets, and filed similar lawsuits. (Kink attorney Karen Tynan later noted, "None of these claims were made at the time of the shoots, and are easily refuted both by detailed shoot records, our testing protocols, and the video footage itself.") However, in a heartening development, U.S. District Judge James Donato ruled today that Kink's (actually, Kink's parent Cybernet Entertainment's) insurance company, Michigan-based Atain Specialty Insurance Company, must pay the adult company's costs of litigation of the lawsuits. Attain had filed suit against Cybernet to avoid the legal expenses, arguing that a clause in the insurance contract which exempted from coverage "physical and sexual abuse" allowed Attain to refuse to cover those costs. In a summary judgment finding for Cybernet, according to Courthouse News, Judge Donato distinguished between that contract clause and the fact that the insurance contract between Cybernet and Attain does not specifically "exclude coverage for litigation arising from any sexual act that occurs on the premises." Whether or not the studio took adequate steps to protect actors is irrelevant, Donato said in his opinion, because the exclusion only covers sexual acts caused by an omission. “The presence or absence of HIV safeguards did not cause them to have sex,” Donato wrote. Attain's attorney, GailAnn Stargardter, had argued that her client's case was similar enough to a 1996 case from Texas, Acceptance Ins. Co. v. Bhugra Enterprises Inc., where the court found that a hotel's insurer was not liable for the expenses attendant to the hotel owner having been sued for failing to prevent a rape that was allegedly facilitated by inadequate lighting and security on the premises, but Judge Donato noted that in the Texas case, the claim was that but for the hotel owner's negligence, the rape would not have occurred. In the present case, however, the judge noted that the performers "were paid actors, paid to have sex. There’s no omission you can hang your hat on to deny coverage." "How did anything the building owner do cause them to have sex," Donato later asked. "They were going to do that anyway." It is unknown at this time whether Attain will appeal Judge Donato's ruling.

 
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