DENVER — Xcel Energy wants a judge to dismiss a lawsuit blaming the utility company for the Marshall Fire, which burned more than 1,000 homes in Boulder County six months ago.
Investigators still have not revealed a cause, though a March lawsuit focuses on the possibility that arcing powerlines were to blame. It's a claim Xcel says is "full of conclusory statements and essentially devoid of factual allegations."
The original lawsuit was filed by two businesses, Eldorado Enterprises, Inc. and Eldorado Liquor, Inc., and George and Lisa Kupfner, a married couple characterized as “terrorized and damaged” by the fire. That suit cites video shot by a witness on Dec. 30. The video shows sparks flying from a malfunctioning power line near the Shell gas station at 1805 South Foothills Highway, in the Eldorado Springs neighborhood of Boulder County.
In Friday court filings seeking to have the potential class action lawsuit dismissed, Xcel wrote the video does not show sparks igniting a fire, but rather shows that the Marshall Fire was already ablaze. After the arcing power line video, more footage shows the smoke well into Superior.
"For dismissal at this early stage, you have to consider whatever's in the complaint as true," said 9NEWS legal analyst Scott Robinson.
Robinson said a liability lawsuit seeking to become a class action lawsuit can lay out broad claims to start but eventually needs to be able to back them up as fact.
"You have to show that Xcel's conduct was not just negligent, but that it either caused or contributed to the cause of the Marshall Fire," he said.
Xcel also wants the lawsuit tossed because of something called the "filed rate doctrine." This refers to tariffs approved by state regulators, the Public Utilities Commission (PUC).
These tariffs dictate how Xcel constructs, operates and maintains its equipment. Xcel says the lawsuit shows no facts that the company failed to comply with those standards set by the PUC. Further, Xcel says that the 100 mph winds that day would be considered an "act of God," and the company could not be in violation of a tariff.
"This is a bit of an extension, to basically say, since we're governed by the PUC, we can't be liable no matter how careless or negligent we are. That may be a step too far for that doctrine," Robinson said.
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This process remains in the early stages. This request by Xcel to have it dismissed is the typical step after being notified of the lawsuit.
When it comes to this case, for the lawsuit against Xcel to have legs, dots will need to be connected showing arcing power lines led to or contributed to the fire, or that Xcel was negligent with its equipment.
"You got to show causation and without it, you've got no claim that would ever get to a jury," Robinson said.
Every judge in Boulder District Court recused themselves from this case. It may get shifted to Denver court, but right now, a Jefferson County judge is overseeing the case.
9Wants To Know has reported on three possibilities for the start of the Marshall Fire: Burning on private property near the origin, coal seams burning underground and the arcing power lines.
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