Miss. Supreme Allows Subrogation Suit Against ATV Driver in Crash Involving Lt. Gov.

A workers’ compensation fund for Mississippi state agencies will can take subrogation action against the driver of an all-terrain vehicle that badly injured the former chief of staff to the state’s lieutenant governor, the Mississippi Supreme Court decided.

A circuit court had erred when it essentially barred the Mississippi State Agencies Self-Insured Workers’ Compensation Trust from going beyond its representative’s limited deposition testimony, which had not offered much evidence of the ATV driver’s negligence, the high court wrote in its Aug. 31 opinion.

The justices found that a genuine issue of material fact exists over the negligence of the driver, Alex Herrgott, and that Herrgott’s lawyers had inappropriately exploited court rules to question the trust’s representative about legal theories.

“The Trust is not bound by the failure of its Rule 30(b)(6) representative to articulate a legal theory at his deposition,” Justice David Ishee wrote for the court. “Thus, we reverse the summary judgment in favor of Herrgott and remand the case for further proceedings.”

The incident happened in 2015, when state and local officials attended a conference and retreat in the Mississippi Delta. Joseph McNabb was then chief of staff to Tate Reeves, who was lieutenant governor at the time and is now governor of the state. On his way back from a blues club in Clarksdale one night, to his cabin at the conference, McNabb and others hitched a ride from Herrgott, who was driving the ATV on the dirt road, the court explained.

To avoid a pothole, Herrgott swerved, overturning the vehicle and crashing McNabb and others to the ground, testimony showed. McNabb suffered spinal fractures and other injuries and was hospitalized for a month. The incident was determined to be work-related and the workers’ comp trust provided more than $328,000 for McNabb’s medical care and continuing physical therapy.

Later, the trust went after the other parties in the case to try and recover some of the expenses. The trust initially argued that Herrgott, the driver, had been drinking, as had others at the gathering.

Federal and state rules of civil procedure provide that parties in legal proceedings may depose a representative of a government agency or corporation, known as a Rule 30(b)(6) representative. In deposition, the trust’s representative suggested that Herrgott was intoxicated, but provided no evidence of that. The representative also said the trust had no other evidence that the driver was operating the ATV in an unsafe manner.

The trial court essentially said that was the end of it, and that the trust was stuck with the representative’s deposition testimony, as flawed as it might have been. But the Supreme Court justices disagreed, noting that real questions remained about Herrgott’s culpability.

“By his own admission he knew the road was in poor condition … A driver operating a vehicle at night on a roadway known to be in poor condition has a duty to operate the vehicle at a speed that would allow him to avoid potholes,” the opinion reads.

The case now goes back to the Coahoma County Circuit Court for further proceedings.