SAN FRANCISCO—It's been about four years since three adult performers—two men and a woman—filed suit against Kink's Armory Studios, its manager Peter Acworth and its "tenant" Cybernet Entertainment LLC, charging that they'd contracted HIV during shoots they'd participated in at Armory Studios, but that long battle is set for another go-round as Acworth and Armory have just asked the Ninth Circuit Court of Appeals to force the company's insurance carrier, Attain Specialty Insurance Co., to do what it had contracted to do: insure.
Of course, insurance contracts can be complicated, but some things are pretty clear, and one should be that simply performing in a sexually explicit scene, absent anything else, is not "sexual abuse" by any stretch of the imagination—so it's difficult to understand how, in December of 2017, U.S. District Judge James Donato found that Attain wasn't responsible to defend the lawsuit the three performers filed against Armory and Acworth based on the policy exclusion for "physical-sexual abuse."
"There can be no serious dispute that plaintiffs would not have contracted the virus but for their sexual activity during the shoots. Consequently, it cannot seriously be debated that even the claims and causes of action against Armory and [its manager] are ones that 'aris[e] out of ... sexual behavior intended to lead to, or culminating in any sexual act, ... caused by ... omission by ... [t]he insured or the insured’s employees,'" Judge Donato wrote in his 2017 ruling, granting Atain's motion for summary judgment.
Of course, the problem is that Armory's/Cybernet's main business is filming and distributing sexual acts, so what would Attain be insuring if not injuries connected to those sexual acts?
That's exactly what Armory and Acworth are asking the Ninth Circuit in seeking to revive its lawsuit against Atain, arguing in their petition that, "Because the exclusion precluded coverage only for claims arising from sexual acts caused or instigated by the insured or the listed individuals, and the sexual acts here were caused or instigated only by the insureds’ tenant [Cybernet], the district court erred in granting summary judgment."
Whether the Ninth Circuit hears the petition may revolve around how closely it believes Armory Studios and Cybernet Entertainment are connected, and news stories in the adult press have often glossed over the difference between the two, but assuming the Ninth's judges and clerks can parse the wording of Atain's contract with Armory, the insurance company may once again be on the hook for the medical expenses to treat three cases of HIV—even though, as AVN has previously reported, a thorough investigation revealed that no one who had sex with the three plaintiffs was HIV-positive.
