A class-action lawsuit alleging faulty power lines might have sparked the Marshall Fire, the most destructive in Colorado history, will proceed after a judge denied the power company’s motion to dismiss. 

Eldorado Liquor store owners George and Lisa Kupfner filed the lawsuit March 31 against the Public Service Company of Colorado (PSCo), a subsidiary of Minnesota-based Xcel Energy, after the fire destroyed their business.

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The Dec. 30 Marshall Fire destroyed more than 1,000 homes and businesses, killed two people and scorched more than 6,000 acres. The fire was fueled by dry conditions and a windstorm with recorded velocities up to 106 mph that moved it as fast as 60 miles per hour in the grasslands west of Superior.

The lawsuit claims that Public Service Company of Colorado engaged in “willful and deliberate mistreatment of its power utility equipment” along Highway 93 south of Boulder and that the power lines were a “substantial factor” in causing the fire.

Public Service attorneys filed a motion to dismiss the case based on its status as a public utility, citing language in the statutes controlling public utilities that it believes disallows the claims.

But on Nov. 22 visiting District Court Judge Christopher Zenisek denied the motion to dismiss, ruling in part that PSCo’s arguments did not support dismissal, meaning the case will go to trial.

The plaintiffs “have articulated a plausible theory” that PSCo could be liable, according to Zenisek’s ruling.

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In a motion to dismiss, the plaintiff must “plead sufficient facts, taken as true and in the light most favorable to the plaintiff, to state a claim for relief that is plausible on its face,” according to the ruling.

Lead Attorney James Avery, with Denver Injury Law in Boulder, told The Denver Gazette the ruling is “an important ruling, and it’s opened the door for thousands of Colorado citizens to potentially get compensation for the damages they suffered from the Marshall Fire.”

Xcel Energy spokesperson Michelle Aguayo replied: “We have conducted our own investigation into the cause of the Marshall fire, and based on that review, we do not believe the fire was caused by our equipment or operations. We’ve also reviewed our maintenance records and believe our system was properly maintained.”

At 11:56 a.m. on that day, the National Weather Service reported peak wind gusts exceeding 100 mph.

According to the Denver Gazette’s news partners 9News, cellphone video taken by witness Edward Harrell just after noon on the day of the fire shows an electrical arc directly over Highway 93 occurring in power lines seen whipping in the wind, but there is no sign of fire close to the intersection at that time.

Other witnesses reported similar arcing, according to the complaint.

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Shortly after the fire, the Boulder Office of Emergency Management ruled out initial reports by residents claiming they saw downed powerlines where the fire started.

PSCo found no downed powerlines after conducting an inspection, Office of Emergency Management officials said.

“They did find some compromised communication lines that may have been misidentified as powerlines,” Office of Emergency Management officials said. “Typically, communications lines (telephone, cable, internet, etc.) would not be the cause of a fire.”

The final cause of the fire and its point of origin have not yet been reported by the Boulder County Sheriff’s Office, almost a year after the fire started.

The Sheriff’s Office declined to release the results of the investigation to The Denver Gazette Monday, saying the case was still an “open investigation.” No estimate of when that ongoing investigation might be closed, and reports made available was given.