Lawsuit over alleged backhoe accident settled

CHARLESTON - A lawsuit against Upton Construction Company filed by a Raleigh County couple alleging injuries has been settled.

Blacktop Industries and Equipment Company Inc. was also named as a defendant in the suit.

Both parties came before the court on May 28 and announced that all matters in controversy were settled and asked the court to dismiss the claims with prejudice.

On Aug. 25, 2009, Arnold Bret Acord was operating a backhoe owned by the West Virginia Department of Highways and was cleaning out the ditches along Carver Street in Raleigh County, according to a complaint filed Aug. 19, 2011, in Kanawha Circuit Court.

Acord claimed after he finished cleaning the ditches, he began to scrape mud from the pavement with the front bucket of the backhoe when the bucket struck an unmarked manhole protruding above the surface of the pavement.

As a result, Acord’s body was thrust “violently forward and his forehead shattered the windshield of the backhoe,” according to the suit.

Acord claimed the defendants had recently upgraded the sewage system in Glenn White and had installed new manholes on Carver Street. Blacktop Industries and Equipment Company had been hired to install new pavement along the street after the manholes were installed.

The defendants had knowledge that the protruding manholes presented a safety hazard to highway maintenance workers such as Acord, but despite their knowledge, failed to eliminate the safety hazard.

Acord claimed the defendants were negligent and caused his injuries.

Upton Construction Company also failed to use reasonable care in selecting Blacktop Industries to perform work to accepted industry standards, according to the suit.

Acord and his wife, Lesha Gale Acord, were seeking compensatory and punitive damages with pre- and post-judgment interest. They were being represented by Aaron L. Harrah and James C. Peterson of Hill, Peterson, Carper, Bee & Deitzler PLLC.

Upton was represented by Johnnie E. Brown of Pullin, Fowler, Flanagan, Brown & Poe PLLC. Blacktop was represented by William R. Slicer and Joseph T. Cramer of Shuman, McCuskey & Slicer PLLC.

The case was assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 11-C-1425