It’s the holidays, and the last thing Marshall fire victims want to think about is whether they should sue for their losses. But time is running out to join one of the many “mass tort” lawsuits with just five weeks to go before the statute of limitations is up.

Most of the lawsuits are “mass torts,” which means they are hundreds of lawsuits rolled into one.

Two people died and 1,084 homes were lost in Colorado’s most destructive wildfire on Dec. 30, 2021. Seven commercial buildings were destroyed, 149  structures were damaged, and many victims suffered psychological trauma, but, so far, the number of people who have joined lawsuits is low, according to law firms that are representing victims.

“Half of the victims have not signed up yet,” said Gerald Singleton of Singleton Schreiber out of San Diego.

Singleton said that in his firm’s experience representing plaintiffs affected by utility fires in California and Oregon, most victims would have joined lawsuits by now.

“Normally, 75% of victims file suit,” he said.

Like most of the civil law firms that have descended on Colorado after the Marshall fire, Singleton Schreiber is based in California but now has an office here.

The firm held a Zoom meeting Tuesday night to explain the upcoming deadline to Marshall fire homeowners, but, except for one reporter, no one joined the call.

Perhaps, Singleton observed, turnout was low because of the upcoming holiday.

Not every law firm that is taking clients agrees that few people are pursuing litigation.

Eve-Lynn Edelson, of Edelson P.C, said she expects “a significant uptick in the coming weeks.”

Edelson lives in Boulder.

“This community is sophisticated. It is focused on this litigation, and eager to move forward,” she said.

Boulder County joined lawsuits

It’s unclear exactly how many Marshall fire victims are suing, but during an Oct. 10 Boulder County Commissioners meeting, a County Attorney’s Office letter indicated there have been “more than ten lawsuits” filed by “hundreds of people.”

Boulder County voted to sue Xcel Energy during that meeting by a vote of 2-1. County attorneys recommended the suit because, according to the county attorney’s one-page memo, the Federal Emergency Management Agency required the county to take all reasonable commercial action by law.

The document stated that, “because FEMA may attempt to recover funds from Boulder County if Boulder County does not pursue a claim, the County Attorney’s Office requests authorization from the Board to take commercially reasonable steps, including filing a lawsuit against Xcel Energy and any applicable related entities to recover for damages caused by the Marshall Fire.”

The lone dissenter on the Boulder County panel, Ashley Stolzmann, explained her no vote by saying that she had to weigh whether it would do any good for an already-traumatized community.

“I’m not interested in making lawyers and insurance companies rich off of a disaster that impacted our community so negatively and I find that distasteful,” Stolzmann said.

Boulder County’s intent to sue is public knowledge because bylaws do not allow the panel to go into executive session.

It is unclear whether the other two entities affected by the fire, the City of Louisville and the Town of Superior, are also suing. Those actions were decided behind closed doors because, unlike Boulder County, Louisville and Superior are not forbidden to enter executive session.

All of the lawsuits that have been filed by plaintiffs are against Xcel Energy.

After 17 months of investigation, Boulder County Sheriff Curtis Johnson and Boulder County District Attorney Michael Dougherty announced last June that the Marshall fire was actually two separate fires started by two separate causes within 2,000 feet and an hour apart.

Investigators determined that a trash burn, which got out of control on the Twelve Tribes property just off of Marshall Road in Boulder County, was the first to ignite. The second fire, which merged with the first one, was started by a swinging power line which was throwing off sparks, they said.

Xcel Energy officials disagree with investigators’ findings and maintained their utility lines did not spark the fire. Company officials, who blamed an underground coal fire for the destruction, stated that the original trash fire that started on Twelve Tribes’ property was also responsible.

Mass torts

Payouts in “mass tort” cases are dependent on individual damages, yet plaintiffs still work as a unit to prove the defendant is guilty. This is different from a class action lawsuit, where all plaintiffs receive the same payout. It costs nothing to join a mass tort lawsuit and attorney obtain fees from the payouts in the amount of at least 20% to 35% of what’s awarded by the courts.

A legal battle is shaping up to start in early January. The first hearing on Jan. 5 will be overseen by one judge, First Judicial District Judge  Judge Christopher Zenisek.

After that, discovery documents will fly. That’s also when subpoenas will go out to witnesses, primarily first responders, who saw the very beginning of the disaster.

Singleton believes that the reason so few people have jumped on the lawsuit train could be because the cause of the fire was not determined for nearly a year-and-a-half after the fire and because so few victims have actually finished the rebuild process.

“Most people are underinsured,” he said. “Once more of them rebuild, they will realize they are short the amount of money they need.”