By T. D. Thornton
Last spring Charles Town Races was forced to cancel live racing for two weeks after 1,300 tons of sand laid down for a routine track resurfacing project was found to be contaminated with hazardous rocks, some as big as fists, according to the racetrack. Now a lawsuit filed by the West Virginia track's corporate parent against a Pennsylvania- based materials provider appears headed for federal court in an attempt to collect unspecified damages over the lost business.
The suit was originally filed by PNGI Charles Town Gaming LLC in the Jefferson County, West Virginia, circuit court. But the defendant, York Building Products Co., et al, petitioned Nov. 7 that the case be moved to the United States District Court of Northern West Virginia. York's reasoning, according to the civil cover sheet it filed, has to do with the two parties being from different states, and the fact that the plaintiff, in a pre-suit demand letter, asked for $148,170 in damages even though the rock-tainted sand cost only $46,930.
Charles Town argued in its breach-of-contract filing that because the track's closure coincided with the week of and directly after the GI Kentucky Derby simulcast, it lost significant business by not being able to offer live racing when public interest and attendance in the sport are at their annual high points.
Charles Town has purchased track materials from York on multiple occasions in the past, the suit noted, so the supplier was well aware of the intended use for the three different grades of sand that were delivered in bulk between April 11 and 14, 2016.
“Unbeknownst to PNGI, one or more loads of sand delivered by York were contaminated with rocks that did not conform to the specification advertised by York,” the filing alleged. “The rock contamination was not apparent from a reasonable inspection of the material by PNGI's employees until the contaminated sand and rocks had been spread on the track surface.”
The rock-strewn sand, according to the plaintiff, created a “serious safety hazard to jockeys and horses.” The surface had to be scraped up and removed while live racing was canceled, during which time “PNGI suffered a significant downturn in visitor attendance, and a corresponding loss in revenues and profits,” the suit alleged.
“York employees admitted to PNGI that York was responsible for the rock contamination in the sand delivered to PNGI,” the suit continued. “Nonetheless, York has refused to honor its express and limited warranties…has refused to provide any monetary compensation to PNGI for any of its losses…and has in fact demanded full payment from PNGI despite admitting that the sand was contaminated and neither merchantable nor fit for PNGI's intended purposes.”
York, according to its civil cover sheet, is demanding a jury trial to settle the matter while also asking for the “removal of breach of contract action.” The federal judge now in charge of the case has set a Dec. 23 deadline for the parties to submit a proposed discovery plan.
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