Several agencies named defendants in 5 legal actions
Four new lawsuits were filed last year against two utilities and two state agencies for property damage sustained in the August 2015 Twisp River Fire.
One of the four lawsuits was filed by 11 property owners for uninsured land, timber and personal property destroyed in the fire. The other three lawsuits are so-called subrogation lawsuits, filed by insurance companies seeking to recover money they paid out to policyholders for destroyed property, including homes and vehicles.
The new lawsuits join a suit filed in 2016 by the Washington Department of Natural Resources (DNR) against the Okanogan County Electric Cooperative (OCEC). That lawsuit seeks more than $1 million to reimburse DNR’s expenses for firefighting and investigation of the fire.
OCEC is named as a defendant in all the new lawsuits, along with the Washington Department of Fish and Wildlife (WDFW), the Douglas County Public Utility District (PUD), and DNR, making the agency both a defendant and a plaintiff.
A DNR investigation completed in May 2016 determined that the fire was caused when small tree branches rubbed against a powerline conductor. DNR’s wildland fire investigator, who arrived on the day the fire started, said he had observed tree branches rubbing against the overhead powerline when the branches swayed in the wind. The powerlines are part of the network operated by OCEC.
In the lawsuit filed in August on behalf of 11 property owners with uninsured or underinsured losses, attorney Rodney Nelson claims that the Twisp River Fire started on the PUD’s property and spread to the plaintiffs’ properties “causing extensive damage including … loss of personal property, damaged real property, including damage to fencing, structures, grass lands and timber lands.” In addition to property damages, the plaintiffs seek costs of restoration, past and future out-of-pocket expenses, compensation for mental anguish and emotional distress, and attorneys’ fees.
The three subrogation lawsuits are fairly similar, filed by different insurance companies seeking to recover damages they paid out to nine policyholders in all. All lawsuits allege that the defendants failed to take proper safety precautions by removing or pruning the trees to prevent contact with the powerlines.
Most lawsuits don’t name a specific dollar amount and say property damages will be proven at the time of trial, but one insurance company said it paid almost $252,000 to its insured for property damage.
The trees and powerline were behind a small, unoccupied house on Twisp River Road on property owned by Douglas County PUD about 6 miles west of town. The house, which was not damaged in the fire, has since been demolished.
WDFW is named in the lawsuits because it operated a salmon-recovery project at that property and at acclimation pond across Twisp River Road, under contract with the PUD.
Last fall, Douglas County PUD terminated the contract for WDFW to operate the Methow Hatchery, which included the Twisp River Road project. It is unclear whether that will have any bearing on these lawsuits.
The fire burned more than 11,000 acres and destroyed half-a-dozen homes as it burned north and east toward Twisp. Three young firefighters were killed and a fourth was severely injured when their engine went off Woods Canyon Road, just east of the origin point, in blinding smoke and flames about two-and-a-half hours after the fire began. Three others, who were higher on the road, sustained less-serious injuries.
All claims denied
OCEC has denied all the charges, saying there’s no evidence to support them. Moreover, the fire may have been proximately caused by third parties, including but not limited to DNR, and those parties should share responsibility for damages, the co-op said.
OCEC also argued that the plaintiffs may have failed to mitigate conditions that contributed to the damages. The utility also said that claims may be limited by other causes, “including but not limited to negligent or reckless firefighting commands.”
WDFW denied all the claims, saying it had no legal duty or contractual obligation to maintain the trees growing on the PUD’s property, nor to maintain OCEC’s powerlines. The agency also said the damages may have been caused in whole or part by the plaintiffs’ negligence.
Similarly, DNR and the PUD denied all the allegations and said other parties may have been responsible. The PUD said the fire was caused by an act of God.
The plaintiffs added DNR as a defendant because OCEC alleged that DNR’s actions may have caused or contributed to the damages. Without naming DNR, the defendants could claim at trial that some unnamed party was the real culprit, said Nelson.
Although it’s difficult to hold emergency responders responsible, Nelson said he filed an amended complaint to include DNR as a plaintiff since OCEC has alleged DNR was partially responsible and they were nearing the end of the statute of limitations.
Washington’s public-duty doctrine, which says DNR “is carrying out duties owed to the public in general and not to any individual person or class of persons,” almost immunizes first responders such as DNR who respond to a fire or other emergency, particularly with regard to property damage, said Nelson.
In a reply for WDFW by the Washington assistant attorney general, WDFW opposed adding DNR to the lawsuit. “DNR had no legal duty to protect Plaintiffs’ properties in the course of fighting the fire,” he said.
The initial DNR lawsuit against the electric co-op was filed under a state law that allows agencies to recover firefighting costs and related expenses. Along with the complaint, DNR submitted an itemized bill of more than $1 million, for wages, firefighting equipment and meals.
In a response to that lawsuit, OCEC denied all allegations regarding its responsibility for the fire. OCEC also denied the conclusion that the fire had been caused by contact between the tree branches and powerline.
OCEC said the deaths and injuries had resulted in part from critical firefighting errors made by DNR personnel that placed firefighters at unnecessary risk.
Because there are multiple plaintiffs and defendants, attorneys are in the process of determining how to deal with all the claims and whether they can be consolidated, said Scott Samuelson of Forsberg & Umlauf, an attorney for OCEC. All are seeking financial damages and none are alleging criminal negligence on the part of any of the plaintiffs, he said.
There has been some written discovery in the original case DNR filed against the electric co-op, but there is currently little activity, said Samuelson. He said he expects discovery to resume in the spring, when travel is easier.
The statute of limitations for damage to personal property, such as a house or car, is generally three years, but only two years for land and other real property, according to Nelson.