Boulder judge rejects Xcel Engerys motion to dismiss Marshall fire lawsuit

Boulder District Judge Christopher Zenisek has rejected a motion by Xcel Energy to dismiss a class action lawsuit that blamed the state’s largest utility for causing or contributing to the hugely destructive Marshall fire on Dec. 30.

Attorney James Avery with Denver Injury Law LLC in Boulder and the Schack Law Group in San Diego filed the case, Kupfner vs. Xcel Energy, in late March, on behalf of lead plaintiffs George and Lisa Kupfner, owners of Eldorado Liquor. The lawsuit alleges that Xcel Energy equipment “substantially caused or contributed to the cause, origin and continuation” of the fire, which burnt more than 6,000 acres and destroyed more than 1,000 homes and businesses in Superior, Louisville, Lafayette and unincorporated Boulder County.

Xcel Energy sought to have the lawsuit dismissed on grounds that it was unfounded and that it was not negligent in the upkeep of its equipment. But on Nov. 22, Zenisek denied the motion, allowing the lawsuit to move forward.

“This order clears the way for Xcel Energy to potentially be held accountable for the $2 billion in losses suffered by thousands of citizens impacted by the Boulder Marshall fire,” Avery said in a release.

A definitive cause of the fire, which was fueled by winds topping 100 miles an hour, remains undetermined. A video taken the morning of Dec. 30 shows Xcel equipment arcing or releasing sparks near where authorities believe the fire started. But a smoldering underground coal fire in the area and human activity are also under investigation.

“Plaintiffs here establish a plausible and reasonable inference that Defendants’ powerlines, known to contain potential for fire danger, arced and thereby caused the Marshall Fire. They further allege that better maintenance or construction could have prevented the arcing or reduced the Marshall Fire’s impact,” Zenisek said in his order rejecting Xcel’s motion to dismiss the case.

Xcel Energy didn’t respond to a request for comment on the recent ruling. When the lawsuit was filed, Michelle Aguayo, an Xcel Energy spokeswoman, said in an email: “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.”

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