SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment in favor of an insurer in its third-party action for a declaration that it has no duty to defend Kink.com’s parent company.
Former adult performers Cameron Bay, Rod Daily and a John Doe allegedly contracted HIV during separate shoots and sued Cybernet Entertainment LLC at San Francisco Superior Court.
Last year, Bay and Daily’s lawsuits were settled and dismissed; Doe’s case was dismissed with prejudice.
In a memorandum opinion, a three-judge panel at the 9th Circuit affirmed the decision by U.S. Judge Yvonne Gonzalez Rogers in favor of State Fund.
Cybernet Entertainment filed a third-party complaint against State Fund seeking a declaration that the workers’ comp insurer had a duty to defend Kink.com in three state court actions filed under a workers’ compensation and employer’s liability insurance policy.
The adult performers argued that their work was outside the scope of workers’ compensation because the 2013 shoots were outside the “compensation bargain.”
Rogers found that an express exclusion in the studio’s policy bars actions for intentional torts and that plaintiffs’ non-intentional tort claims are preempted by a provision of workers’ compensation.
On Thursday, the 9th Circuit issued its opinion in the case, agreeing with Rogers and finding that State Fund did not have a duty to defend Cybernet.