Friday, September 08, 2006

Southwest Virginia family and A&G Coal settle in 3-year-old's death

A judge's notes indicate a $3 million settlement in the case of a boy killed below a strip mine.
By Tim Thornton

APPALACHIA -- The second anniversary of Jeremy Davidson's death passed without clamor last month. So did the conclusion of a lawsuit against the people Jeremy's family blames for the toddler's death.
Local activists didn't mark the anniversary because they didn't get the family's blessing. Judge Tammy McElyea ordered the lawsuit's settlement agreement sealed, but her handwritten notes in the case file say the Davidsons got $3 million to compensate for their son's death. They had asked for $26.5 million.
The 3-year-old died in an Aug. 20, 2004, incident that attracted international news coverage. He was asleep in his bedroom while Kelly Robinson and Jimmy Ray Vanover widened a haul road on A&G Coal's strip mine above his house. Vanover was operating a front-end loader. Robinson, who was running a bulldozer, told Virginia Division of Mines, Minerals and Energy investigators that no one told him there were houses below where he was working.
The road they were working on wasn't meant to be a haul road. It was built in 1983 as part of a mined land reclamation project. Robinson and Vanover were making the road wider, so it could accommodate the 18-wheeled trucks that haul loads of coal from the site.
When the original road was built, a rock rolled off the site and crashed through the back of the Freewill Baptist Church. Now it's called the Looney Creek Memorial Baptist Church. It sits next door to the Davidson place.
Two years ago, about 2:30 a.m. during Robinson and Vanover's shift, another rock rolled off the site and into the Davidson house 649 feet below.
The half-ton boulder crashed through the back wall of the Davidsons' double-wide, through two interior walls and came to rest at 7-year-old Zachary Davidson's bed.
But first it rolled though Jeremy's room. The toddler's parents and brother found him on the floor -- Arvil Cross, a neighbor, said he had been knocked through the floor -- with his head wedged in his bed frame. He had a broken arm, a broken leg and a broken neck. There was a wound on his head where it had slammed into the floor.
His parents tried to revive the boy until rescue workers arrived. It didn't do any good.
"They never spent another night there," Cross said. "I don't reckon they've ever been back up in this holler."
Cross, who fills his retirement by running a lawn-care business, was mowing his own yard Wednesday. He said people don't talk about the tragedy much anymore.
"It's died down a whole lot," he said.
The lot next to the Looney Creek Memorial Baptist Church is virtually empty now. Scraps of a foundation mark where the Davidsons' house used to stand. A work crew hauled it away about six weeks ago, Cross said. Weeds are already reclaiming the bare dirt that used to be under the house.
"We heard A&G Coal bought it out and was going to turn it into offices or something," Cross said. "But you hear anything."
Larry Bush, a former miner and mine inspector, is a member of Southern Appalachian Mountain Stewards, the local anti-mountaintop removal mining group. On Wednesday evening, Bush met with representatives of Mountain Justice Summer, a group that's battling mountaintop removal across the southeastern coalfields.
They met at Mountain Links, a resource center Mountain Justice Summer is setting up on Appalachia's Main Street. The group is setting up a nonprofit organization that will rent three offices from United Mine Workers of America Local 1607, with permission to use the union's meeting room when they need to.
It's a dingy space with vintage office furniture and ceiling tiles stained varying yellowish, grayish shades of drab. But it gives the group a presence downtown.
Mountain Justice Summer came to the town of Appalachia shortly after Jeremy's death to march in protest. They marched again on the first anniversary.
The family didn't have anything to do with the first two marches. The would-be organizers of this year's aborted march couldn't find the Davidsons to ask them about it.
"Just out of respect for the family we didn't do anything," he said about plans to commemorate the anniversary.
Like Cross, Bush said talk about the Davidsons' tragedy has quieted.
"It's probably still on people's minds but they're not saying anything," said Bush, who was surprised to hear the lawsuit has been settled and disturbed that it took so long. "It was drawn out, I think, to let public sentiment die down."
It took nearly two years, three judges and two trial dates to resolve the case. It went through an unsuccessful mediation and competed for time with the General Assembly and the flood of gambling cases coming out of Appalachia. Terry Kilgore, one of the Davidsons' attorneys, represents the area in the House of Delegates. McElyea expects to hear at least some of the gambling cases.
The original list of defendants included A&G Coal, the company operating the mine; Matt Mining, which holds the permit to mine; Penn Virginia Operating Co. and Penn Virginia Resource Partners, which own the land and the mining rights; and eight A&G Coal employees. By the end, Matt Mining and the Penn Virginia companies had been dismissed.
The Davidsons' original aim for $26.5 million was reduced by the shrinking defendants' list and by Virginia law. Their attorneys had asked for $350,000 in punitive damages from each defendant. Virginia law limits punitive damages to $350,000 in total.
The prospect of criminal charges in the case disappeared long ago. The civil case has been settled.
But there's at least one hearing left. Virginia's Department of Mines, Minerals and Energy fined A&G Coal $15,000 for what the DMME called "gross negligence" related to the incident. That was the legal limit at the time, but the case moved the General Assembly to toughen the law. A similar event now could cost a company $210,000.
But A&G officials argued the $15,000 fine was too steep. They appealed the fine and now that the civil case is settled, the process of scheduling that hearing can begin.
Mike Abbott, spokesman for the mine department, said Thursday that he didn't know when that hearing will be scheduled.
The road that leads past the former Davidson home site, past A&G's mine and over Black Mountain into Kentucky is a Virginia Byway. According to the Virginia Department of Transportation Web site, those byways reveal "a side of the Commonwealth that is uncommon and enlightening. Each byway leads to scenes of natural beauty and places of historical and social significance."
From a switchback curve on Black Mountain Wednesday night, the A&G mine was marked by small groupings of lights, flickering like campfires as haze settled into the hollows and a full moon hung overhead.
The steady hum of machinery, punctuated by backup warning beepers, mingled with the night insects' sounds as crews continued to mine coal on the diminishing ridge above where Jeremy Davidson used to live.

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