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Xcel named in class action lawsuit alleging sparks from power line caused Marshall Fire

The lawsuit contends a witness captured video showing sparks from a malfunctioning power line. Fire investigators haven't announced a cause of the Marshall Fire.

DENVER — A new class action lawsuit accuses Xcel Energy of negligence related to the Marshall Fire, the most destructive fire in Colorado history, claiming power lines and utility equipment “were a substantial factor in the cause, origin, and continuation” of the event.

Court documents filed Thursday list the plaintiffs as two businesses, Eldorado Enterprises, Inc. and Eldorado Liquor, Inc., and John and Jane Doe, a married couple characterized as “terrorized and damaged” by the fire that tore through parts of Boulder County on Dec. 30. These plaintiffs, the lawsuit says, filed the lawsuit on behalf of Coloradans who experienced property damage or suffered financial loss because of the fire.

The lawsuit contends that before the fire, a witness captured video showing 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.

James Avery, the attorney representing the unnamed plaintiffs and the businesses, told 9NEWS reporter Marshall Zelinger that he has not seen such video, despite it being referenced in the lawsuit. It is video that he believes exists in the business surveillance tape that was turned over to the Boulder County Sheriff's Office. The business owner previously told 9NEWS that the the sheriff's office returned the video equipment and was unable to view any video.

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There is existing video, separate from surveillance clips, that shows power lines over Highway 93 at Highway 170 doing something unusual on Dec. 30. Edward Harrell, who is not part of the lawsuit, recorded the cell phone video at 12:07 p.m.

"That's when I saw the power line arc at the intersection of [Highway] 93 and Marshall Road, and then the winds were just like nothing I've ever seen in my life," said Harrell.

He told 9NEWS that a private investigator reached out to him about his video, but that he had not shared it with the Boulder County Sheriff's Office. Harrell said it was OK for 9NEWS to connect him with Boulder County investigators.

While the lawsuit directly blames power line sparks for igniting the Marshall Fire, fire investigators have not released information backing that assertion. Thursday, the Boulder County Sheriff's Office said it will take several more months to investigate the cause and origin of the fire. Several pieces of evidence remain under review.

The court documents, however, still identify the role of Xcel equipment in past fires -- the Cabin Creek Fire in 2007 that killed five employees and injured three others, and the Overland Fire that destroyed 12 homes in 2003.

The Marshall Fire destroyed more than 1,000 homes and killed one person. Another person is still unaccounted for after the fire. 

According to the lawsuit, the design of Xcel's infrastructure presents "inherent danger." The plaintiffs accuse the company of failing to properly inspect and maintain power lines.

In the case of the Marshall Fire, the lawsuit specifically points to information from Xcel spokesperson Michelle Aguayo, saying she acknowledged the possibility of arcing power lines on the day of the fire. 

When contacted by 9NEWS in February, Aguayo did say via email that lines could have touched, but Xcel had not found downed power lines and the company had no evidence Xcel equipment could have started the fire.

"We are supporting the investigation and will continue to evaluate the facts as we go forward," the email said. "Our equipment held up well in unprecedented 110 mph wind gusts on the day of the fire, but it is possible that some lines may have touched during the storm. Nevertheless, nothing we have seen to this point in the investigation leads us to believe that arcing – or any other aspect of our equipment’s operation – ignited the fire."

Xcel said Thursday afternoon they are reviewing the lawsuit.

"We’re aware of the filing and we’re currently reviewing it," a spokesperson said. "As we’ve said, the cause of the fire is still under investigation and we do not see evidence that our equipment ignited the fire. Lines may wave or arc in 100 mph winds, but our equipment held up well during this unprecedented event. Our own investigation shows the system in the area was properly maintained and operated. Nothing we’ve seen at this point in the investigation leads us to believe that arcing – or any other aspect of our equipment’s operation – ignited the fire."

This lawsuit seeks monetary compensation for reasons including medical care, lost wages and emotional distress.

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