WEST VIRGINIA RECORD

PARKERSBURG – The owner of a Jane Lew hotel seeks more than $500,000 from eight defendants after it says a pool installed by at least one of the defendants is not usable.

In addition, the hotel owner says it should have received compensation after a company took a picture of the pool and placed it in advertisements.

Web Management, Inc. doing business as The Marlinton Motor Inn originally filed a lawsuit Nov. 3 in Wood Circuit Court against Sparkle Pool Company, Garber Concrete Work, Moore's Ready Mix, M&M Concrete Plumbing, Horizon Spa and Pool Parts, Emsco Distributors, Family Fun Corp. and Scottsdale Insurance Company.

Web Management claims it hired Sparkle Pool to construct a pool at The Marlinton Motor Inn on 1993 U.S. 19 North.

Sparkle Pool hired Garber, Moore's, M&M, Horizon, Emsco and Family Fun Corp. as its subcontractors when it constructed the pool in question, according to the complaint.

After spending $139,905 on the pool, Web Management says it cannot use the device.

"The Defendants, Sparkle Pool Company, and all its subcontractors listed as Defendants above, breached the contract referenced in paragraph 14 above by failing to perform services, failing to perform services in a timely manner, failing to complete said contract according to the specifications outlined therein, and failing to follow through with the completion of the project, and failing to fulfill warranty obligations therein, either express or implied," the suit states. "The Plaintiff, Web Management, will have to expend large sums of money to remove the pool and replace the pool with one that is usable as a probable and consequential result of the Defendants' breach of contract."

Because it claims it cannot use the pool, Web Management went to Scottsdale Insurance Company, which insured Sparkle Pool Company, to ask it to cover losses associated with the pool, the complaint says.

However, Scottsdale denied Web Management's claim without just cause, it claims.

In addition, after Sparkle and Family Fun Corp. installed the pool, they used a picture of the pool in advertisements to promote their products without Web Management's permission, according to the complaint.

"Defendants Family Fun Corp. and Sparkle Pool Company have profited from advertising Plaintiff Web Management Inc.'s facilities without compensating the Plaintiff in any way nor obtaining the Plaintiff's permission," the suit states.

Although Family Fun Corp. admits that it did use a photograph of the pool in an advertisement, it denies Web Management's remaining allegations against it and claims the lawsuit should be dismissed with prejudice.

"Plaintiff's damages, if any, were caused by another over whom Defendant has no authority or control," Family Fun Corp.'s answer states. "Plaintiff's damages, if any, were caused by Plaintiff's own negligent or intentional conduct."

Scottsdale, too, thinks Web Management's lawsuit should be dismissed, but for a different reason. It says West Virginia code eliminates third-party bad faith claims. Scottsdale would be considered a third party because it is interjecting in the insurance relationship between Scottsdale and Sparkle Pool Company, according to the insurance company's answer.

"It is beyond doubt that plaintiff can prove no set of facts in support of its claims against Scottsdale which would entitle it to relief," the company's motion to dismiss states.

A third company, Horizon Spa and Pool Parts, also denies Web Management's allegations and claims Web Management's complaint against it should be dismissed.

"Defendant states that it has sold repair parts to Sparkle Pool Company, Inc. with no knowledge of the ultimate destination of those parts," the answer states. "Defendant specifically denies any knowledge of, involvement in, or responsibility for transactions between Sparkle Pool Company, Inc. and other parties."

Sparkle Pool says Web Management's lawsuit should be dismissed, in part because it claims the company fails to state a claim upon which relief can be granted.

In its eight-count complaint, Web Management seeks a judgment of more than $500,000, plus pre- and post-judgment interest, attorney's fees, punitive damages and other relief the court deems just.

Scottsdale removed the complaint to U.S. District Court, where it says the complaint belongs because the court will have to decide the answer to a federal question.

"Here, Plaintiff alleges in its Complaint that certain Defendants 'have violated applicable federal law regarding patent, trademark, or copyright infringement and are entitled to any applicable damages,'" the complaint says. "Plaintiff has clearly alleged a cause of action over which the district courts have original, and, in fact, exclusive jurisdiction."

William B. Summers of Summers and Associates in Parkersburg will be representing Web Management.

Lee Murray Hall and John A. Hess of Jenkins Fenstermaker in Huntington will be representing Scottsdale.

David W. Hardymon of Vorys, Sater, Seymour and Pease in Columbus will be representing Family Fun Corp.

Raymond Thibault of Tucson, Ariz., will be representing Horizon.

Barbara J. Keefer of MacCorkle, Lavender and Sweeney in Charleston and George Y. Chandler II of Parkersburg will be representing Sparkle.

U.S. District Court case number: 6:09-1285