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A record in the mountains

$1.9M is largest p.i. verdict in Alleghany County history

On a spring day in 2006, Michael Boguess went to help his brother Todd pour concrete at a friend’s house. By that evening, the 39-year-old mill worker found himself lying in a hospital bed, paralyzed from the neck down.

Boguess’ life had changed in a matter of seconds when a falling tree limb struck him on the head.

The facts of the incident were undisputed. The concrete delivery company acknowledged their truck driver came into contact with the tree’s foliage while backing up to leave. They further acknowledged that this contact caused the large branch to fall from the tree.

But when it came to admitting liability, the concrete company’s response was unwavering: It’s not our fault.

Instead, they pointed the finger at Todd Boguess, who had been acting as a spotter while the truck was backing up. And they blamed the homeowner, who they claimed had improperly pruned the tree.

It took nearly six years for Michael Boguess, who by then had regained use of his limbs, to take his case to trial.

After three days of testimony, it took the six-woman, one-man jury two and a half hours to hand down what is believed to be a record personal injury verdict in Alleghany County: $1,959,971, plus more than $680,000 in interest.

Covington attorney Russell W. Updike, who represented Boguess along with his colleagues Nolan R. Nicely Jr. and Jennifer K. M. Crawford, called the defendant’s continuous denial of liability a “risky” move that may have helped steer the jury in his client’s favor. He also believes the six-year time lapse between the accident and the trial motivated the jury to add interest to their award, bringing the total recovery to $2,644,373.

The accident occurred on May 18, 2006. Construction Materials Company, a Harrisonburg-based business with a local Covington plant, had just wrapped up a concrete delivery. With the task complete, the concrete truck was turning around to leave when the “pony axel” on top of the truck came into contact with the canopy of the tree, rattling the branches just enough to dislodge a large limb that Updike described as “two to two and a half feet long with a diameter of a one-gallon paint can.” Boguess, who was standing beneath the tree, was struck in the head by the falling branch and immediately paralyzed.

After spending six days in the hospital, Boguess began to regain some feeling. He spent 13 additional days in a rehabilitation facility, and continued outpatient treatment for several months following the accident.

The recovery took its toll on Boguess, both physically and emotionally. As Updike explained, the married father of three had to rely on his wife to help him with everything, including his most basic needs. His injuries also prevented him from attending his oldest son’s high school graduation, Updike said.

Prior to the accident, Boguess had worked as an assembly line assistant at the MeadWestvaco paper mill. The job required heavy labor, including lifting, pulling and long periods of standing. He was unable to resume his job after the accident, but in March 2007, his doctors released him to light duty work and the company assigned him to a desk job.

In 2009, Boguess underwent a three-level cervical fusion to address some lingering symptoms of his injury, including pain, numbness and tingling in his extremities. As a result of the surgery, Boguess was able to stop taking his pain medication, but he lost a considerable range of motion in his neck.

Boguess still experiences numbness in his extremities, difficulty holding objects in his left hand and loss of proprioception. Proprioception, Updike explained, is the ability to know where extremities are without looking. Due to this condition, Boguess walks with a slow, methodical gait, watching every step he takes.

Boguess’ medical expenses were approximately $133,000, and he claimed about $46,000 in lost wages. But recovering these damages proved to be a challenge.

Construction Materials Company not only denied all liability for the accident, but filed counterclaims against plaintiff’s brother and the property owner. The defense claimed Todd Boguess should have alerted the driver before he came into contact with the tree branches. To address the second countersuit, the defense brought in an arborist, who testified that improper pruning of the tree caused the limbs to weaken from rot. Both cases were eventually nonsuited.

The parties attempted to mediate the case in early 2011. During mediation, the defendants took the position that Boguess was an employee of his brother Todd, or else a “borrowed employee” of the construction company, and was therefore barred by the Virginia Workers’ Compensation Act. Negotiations were unsuccessful.

Defendants filed a plea in bar on the workers’ comp issue, which resulted in a one-day jury trial in June 2011. The jury ruled that Boguess was not an employee at the time of the accident, therefore the comp bar did not apply.

Further negotiations failed and the case went to trial in October 2011. But due to issues with the jury, the case resulted in a mistrial.

The rescheduled trial took place last month, before Judge Malfourd “Bo” Trumbo.

The defendants continued to assert that the truck driver and company were not liable for Boguess’ injuries, and that Boguess was contributorily negligent for standing behind the truck at the time of the accident. Defendants also argued that the Boguess’ neck surgery was not related to the 2006 incident, Updike said.

Roanoke attorney Sean Workowski, who represented the defendant, could not be reached for comment.

In closing arguments, plaintiff’s counsel relied on the recent Supreme Court of Virginia decision of Wakole v. Barber (VLW 012-6-035), and requested specific amounts for the non-economic damages. Updike believes the case played a significant role in the verdict, and said the jury sought to have those amounts repeated during deliberation.

An Alleghany County record

The previous top verdict for Alleghany County was somewhere in the neighborhood of $800,000, according to Updike.

“I’ve been practicing in Covington for 22 years and my partner’s been here 50,” he said. The firm is highly certain that the $1.9 million award takes the record.

Michael M. Collins, another long-time Covington attorney, was unable to dispute the claim.

“You couldn’t expect a verdict like that from 20 to 30 years ago to go unnoticed,” said Collins.

Located in the mountainous western region of the state, Alleghany County sits on the West Virginia border, about 60 miles north of Roanoke. The independent city of Covington serves as the hub of its legal community.

The combined population of Alleghany County and Covington in the 2010 U.S. Census was about 22,000. The city of Richmond, by comparison, has more than 200,000 residents.

Trying a cases in a such a small community can prove challenging, according to Updike, who recently had to nonsuit a case after learning that most of the 13 jurors in the panel knew the family of his client.

Collins says Alleghany County jurors are “a little on the liberal side,” compared to their neighbors in nearby farm counties.

In Covington, the MeadWestvaco paper mill drives the economy, and CSX Transportation runs a major locomotive fuel facility in nearby Clifton Forge. The county boasts a fairly large group of union members and railroad workers.

“The working class tends not to cringe at larger verdicts,” said Collins. He added that most personal injury cases filed in Alleghany County are settled outside of court.

During closing arguments, Updike had requested $3 million, the amount of the ad damnum.

“I did not argue for or make any comment on interest,” he said.

Collins, who was familiar with the Boguess case, described the jury as a legitimate cross-section of the community. Updike said the jury was very much in tune to both sides of the case.

“They were the most attentive jurors I’ve ever seen,” said Updike. “They took their job seriously.”

Read the Verdict & Settlement Report

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