DENVER — Another day, another Marshall Fire lawsuit.
On Thursday, the eighth lawsuit was filed against Xcel Energy for its stated role in the Dec. 30, 2021, Marshall Fire.
Last month, Boulder County investigators revealed the cause as two fires:
- A reignited fire on the Twelve Tribes property from a fire burning one week earlier
- A second fire, most likely caused by Xcel Energy equipment
On Wednesday, more than 100 people signed on to an existing lawsuit against Xcel, previously filed by out-of-state attorneys from California.
“Because it's a really good case,” said California-based attorney Benjamin David Petiprin. “The really good wildfire lawyers in our country don't live in Colorado.”
Petiprin is one of the attorneys for the lawsuit that just gained 100 more clients.
His is a mass action lawsuit attempt, as opposed to other lawsuits that are seeking class action status.
A class action case could result in a lump sum amount to be split by plaintiffs.
“Fire cases, that doesn't work, because everyone's damages are so different,” Petiprin said.
A mass action case looks at each plaintiff’s loses on their own merit.
“Each plaintiff’s case is treated individually. So, for example, if your neighbor's case gets dismissed, your case would not get dismissed,” Petiprin said. “It's done in a way that your claim is heard on a day by a judge or mediator, and you'll get an offer on your damages that are different, and particular, as opposed to everyone else.”
That would assume there is a settlement or plaintiff victory.
Longmont firefighter captures images from Marshall Fire
“We would not be pursuing this lawsuit unless we knew or we had some strong evidence that supported our conclusion that Xcel is going to have to be liable for the fire and have to pay out these claims,” Petiprin said.
The investigative report included a reference to a text message by an Xcel lineman to his supervisor saying: "I think our lines may have started this fire east of El Dorado. Just for your [Situational Awareness].”
That lineman, who we are not naming because they are not accused of doing anything wrong, walked back his text when interviewed by deputies investigating the fire.
"Initially, with the lack of training and being an apprentice and driving by, and, like, you know, not being able to look at it closely at that time, that's why I sent the text, I guess,” he said.
Before a cause of the fire was announced, Xcel gave a presentation to investigators trying to explain why the company was not responsible for a second ignition.
The attorneys representing Xcel at that meeting also tried to explain that the damage was done by the Twelve Tribes fire before the second ignition even started.
"By the time you even get to the second ignition, the first ignition is the one that's already spreading to Superior and already spreading to the area that would, unfortunately, suffer a lot of damage from this fire,” an Xcel lawyer said at that presentation.
Petiprin said attorneys with the other lawsuits are working to get all the cases consolidated as one, and the attorneys are sharing costs on a progression report.
“Because the sheriff's report is referred to what's called a ‘cause and origin’ report,” Petiprin said. “That original report was not intended to, and they didn't really try to, show the progression of the fires. It was more along the lines of like, ‘here's where the fire started, here's what we think happened, and then here was the general outline of where it was.’”
That cause and origin report did not waiver on the Twelve Tribes responsibility, but none of the lawsuits are going after Twelve Tribes or that insurance company.
“They're not going to have the resources that we need in order to make our clients whole,” Petiprin said. “It’s just a strategic lawsuit thing. We don't name Twelve Tribes, because we don't believe they have the money or the resources to pay our clients.”
He said Twelve Tribes will likely be pulled into the lawsuit, perhaps even by Xcel.
“Just gaming it out in the future, they're going to be involved in the case anyway. So whatever insurance policy they have on the table is going to go towards resolving all of these claims at some point. So, that is why we didn't need them specifically,” Petiprin said.
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