Lawsuit seeking wildfire damages from PacifiCorp can move forward, judge rules

PORTLAND — Plaintiffs in a lawsuit looking to hold PacifiCorp responsible for Labor Day wildfire damages scored a victory this week as a Multnomah County judge denied the utility’s motions to transfer the case, strike its class action allegations and dismiss several of the underlying claims.

Three Pacific Northwest law firms filed the class action lawsuit against Pacific Power and its parent company, Portland-based PacifiCorp, in late September, alleging negligence in the catastrophic fires ignited during a Labor Day windstorm.

The case is one of several filed against the utility in the wake of the Labor Day wildfires, which burned 1 million acres, destroyed thousands of homes and structures, and caused nine deaths. A number of the most destructive fires were in Pacific Power’s predominantly rural service territory for providing electricity.

The common theme of the lawsuits is the claim that the company was well aware of the critical fire danger, failed to de-energize its power lines beforehand, and had been negligent in trimming trees and managing other vegetation around its transmission lines. The cause of most of the fires is still officially under investigation, though anecdotal and some official accounts suggest some of them were sparked by downed power lines.

PacifiCorp officials declined to comment on the judge’s decision.

There were 17 plaintiffs listed in the original complaint, all of whom owned property destroyed in the Beachie Creek, Santiam Canyon or Echo Mountain Complex fires that started Labor Day. If the case is eventually certified as a class action, however, it could cover anyone in Oregon who lost property in Labor Day’s wildfires and lives in PacifiCorp’s service territory. That could also include victims in the Archie Creek fire along the North Umpqua, the South Obenchain fire east of Eagle Point, as well as the Slater fire, which started in California and burned over the border into Oregon. All of those fires burned within PacifiCorp territory.

The lead plaintiffs in the suit, Jeanyne James and Robin Colbert, are a couple from Lyons who lost their home, their garage, four cars and all their personal belongings during the Labor Day fires in the Santiam Canyon east of Salem.

PacifiCorp, based in Multnomah County, had moved to transfer the lawsuit, arguing that it should be divided and moved to courts where alleged victims lived in Linn, Marion, Lincoln and Clackamas counties. The judge denied that motion along with another to stop the defendants being certified as a class, which is the process of ensuring plaintiffs’ claims have enough similarity and can proceed as one large case. The judge has yet to make that decision but dismissed PacifiCorp’s motion to strike the class allegations.

PacifiCorp also asked the judge to dismiss several of the claims being made in the lawsuit, including public nuisance, trespass and inverse condemnation. The judge allowed all three to move forward, while denying one legal theory the plaintiffs offered as the basis for their inverse condemnation claim.

Inverse condemnation claims typically arise when government entities take personal property without filing condemnation claims or providing adequate compensation. But it has also become the basis for successful lawsuits against publicly regulated utilities in California for wildfire damages, including those stemming from the 2018 Camp fire disaster that led California’s largest utility, Pacific Gas & Electric, to file for bankruptcy the following year.

In a separate ruling, the court also denied PacifiCorp’s request for a protective order that would have shielded it from the obligation to produce documents related to its potential liability until after the class action certification process is completed.

“We are pleased that these motions have been resolved in our clients’ favor and that we can now move this case forward on behalf of Oregonians who lost their homes and property during last year’s devastating fires,” said Matthew Preusch, an attorney at Keller Rohrback L.L.P. and one of the attorneys representing the plaintiffs. Preusch formerly worked as a reporter at The Oregonian/OregonLive.

The court will next consider whether the case should be certified as a class action.