Lawsuit Blames Xcel Energy for Marshall Fire

While recent weather conditions fanned fears of another conflagration on the Front Range, the ramifications of the Marshall fire continue to be felt. Although the investigation into its cause is not yet complete, Denver Injury Law, headed up by James Avery, has named Xcel Energy as a substantial cause and negligent party in the fire. The firm filed a lawsuit on behalf of John Doe clients on March 31, but Avery has been working on the case since two days after the late December fire that destroyed over 1,000 homes in Boulder County.

According to the lawsuit, witnesses observed sparks and the ignition of a fire in the vicinity of Xcel power lines. “On the morning of December 30th, 2021, a witness videotaped sparks flying out of a malfunctioning powerline near the Shell gas station on 1805 South Foothills Highway in the Eldorado Springs neighborhood of Boulder, Colorado,” the lawsuit says. “The sparks from the powerline ignited a ground fire that came to be known as the ‘Marshall Fire.’”

The suit argues that Xcel has an obligation to act responsibly but didn’t, causing the fire to start or aiding in its spread. Even if other causes also contributed to the blaze, Avery says that Xcel should at least be held  partially responsible.

“Because of Xcel's corporate policy of putting profits over public safety, Plaintiffs and others like them have had their homes, businesses, ranches, and farms damaged or destroyed, lost income, money, and business, suffered significant expenses and emotional trauma, and will spend years trying to rebuild their lives and livelihoods,” the lawsuit contends.

The plaintiffs are seeking compensation for losses including property, inconvenience and emotional pain and suffering. Avery is working with Schack Law Group, a San Diego firm that Avery says told him that power lines are a consistent factor in cases such as this.

“The cause of the fire is still under investigation, and we’re working with authorities,” Xcel spokesperson Michelle Aguayo responds. “Our own investigation shows that our equipment in the area of the fire was properly maintained and inspected, consistent with our high standards, and we have not seen evidence that our equipment ignited the fire.”

But Avery has concerns about how Xcel conducted its internal investigation. “In this case, the FBI got involved and cordoned off land and prohibited anyone from going into the land,” he notes. “The exception was Xcel was allowed to go in and trample all over the site. ... Our investigation was certainly hampered by that.”

He's pressing on with what he calls "a good old-fashioned investigation,” going to the burn site to talk with witnesses and experts. “We bring an expert witness in who's a forensic expert, whose job is to be objective and look at all the possibilities, and that expert gave a very high degree of confidence that Xcel Energy was substantially responsible for this fire,” Avery notes.

The plaintiffs are currently applying for class certification; if granted, the fire victims wouldn’t need to argue their cases individually. Avery says he plans to pursue the lawsuit whether or not the victims become a class. Usually class certification takes about six months from the filing date, but the decision could be delayed because the 20th Judicial District recused itself from the case on April 8, without providing any reasoning. Now either a retired judge will be called upon to hear the case, or it will be transferred to another judicial district.

In the meantime, Avery encourages people impacted by the fire to document their losses now, before the passage of time makes pursuing legal action more difficult.

“There are a lot of people that already probably know that they've been harmed and they're not going to get compensated,” he says. “Most people should be talking to lawyers. Whether it's myself or another law firm that's interested in helping, we're going to try to help people.”