Virginia Lawyers Weekly//April 2, 2012
Virginia Lawyers Weekly//April 2, 2012//
Plaintiff, Michael D. Boguess Sr., was helping his brother, Todd Boguess, pour concrete for a mutual friend on May 18, 2006, in Covington. The concrete was delivered by a concrete truck owned and operated by Construction Materials Company, based in Harrisonburg, with a local plant in Covington. After the concrete had been poured, the plaintiff was standing under a tree in the yard of the residence when the concrete truck driver, who was in the process of turning the truck around to leave, backed the truck into the yard and the overload wheels on the rear of the truck came into contact with the canopy of the tree under which the plaintiff was standing. The contact with the tree dislodged a tree branch that struck the plaintiff on the head, resulting in immediate paralysis from the neck down. After approximately a week, the plaintiff began to regain some feeling. Plaintiff continued with further rehabilitation and recovery for a number of months. He was unable to return to his previous position with MeadWestvaco in Covington, but was released to a light duty position with his employer after 10 months. Because of his continued symptoms of numbness and tingling in his extremities, he eventually underwent a three level cervical fusion in the fall of 2009 at the University of Virginia. His medical bills were almost $133,000.
Defendant, Construction Materials Company, denied all liability for the accident and initially counter-sued the plaintiff’s brother on the basis that the brother was acting as a spotter at the time of the backing of the truck. Defendants also counter-sued the homeowner, asserting that negligence in the pruning of the tree had caused it to weaken from rot. A mediation session in early 2011 was unsuccessful when defendants took the position that plaintiff was an employee of the brother or a borrowed employee of the defendants and was therefore barred by the Virginia Workers Compensation Act. Defendants filed a plea in bar on this issue which resulted in a one-day jury trial in June 2011, in which jury ruled that the plaintiff was not an employee at the time of the accident. Further negotiations were unsuccessful and the case was scheduled for trial in October 2011, but resulted in a mistrial. The case was rescheduled for March 2012. The homeowner was nonsuited before trial and the brother was nonsuited on the second day of the March trial. Throughout the trial, the defendants asserted that the truck driver was not negligent and that the plaintiff was contributorily negligent for being behind the truck at the time of the accident. The defendants also argued that the cervical neck fusion in 2009 would have been necessary regardless of the accident in 2006, and was not related.
The jury deliberated for two-and-a-half hours before awarding $1,959,791 with interest from the date of the accident on May 18, 2006, for a total award of $2,644,373. Plaintiff’s counsel had requested $3,000,000, the amount of the ad damnum, in closing. Plaintiff’s counsel believes that the recent Virginia Supreme Court decision in Wakole v. Barber decided on March 2, 2012, played a significant role in this verdict because in accordance with Wakole, plaintiff requested specific amounts for the non-economic damages in closing arguments and the jury actually asked a question during deliberation seeking to have those amounts repeated. This verdict is the largest personal injury verdict ever returned by an Alleghany County jury.
Type of action: Personal Injury
Injuries alleged: Temporary quadriparesis, three level cervical fusion
Name of case: Boguess v. Construction Materials Company, et al.
Court: Alleghany County Circuit Court
Case no.: CL07000255-01
Tried before: Jury
Name of judge: Malfourd Trumbo
Date: March 14, 2012
Special damages: $179,791 in past medical bills and wage loss
Offer: $600,000 on second day of trial
Verdict or settlement: Verdict
Amount: $1,959,971 (with interest from May 18, 2006 for a total of $2,644,373)
Attorneys for plaintiff: Russell W. Updike, Nolan R. Nicely Jr. and Jennifer K. M. Crawford, Covington
Attorneys for defendants: Sean Workowski and Bridget Tainer-Parkins, Roanoke
Plaintiff’s experts: Dr. Jeffery Elias, neurosurgery, Charlottesville; Dr. Trevar Chapmon, physical and rehabilitative medicine, Roanoke; Peder Melberg, vocational expert, Richmond; Dr. Michael Kelly, physical and rehabilitative medicine
Defendants’ experts: Dr. James Vasick, neurosurgery, Roanoke; Mr. Mark Hileman, vocational expert, Roanoke; Mr. Donald Zimar, arborist, Herndon
Insurance carrier: The Hartford