News for those who live, work and play in the Santiam Canyon

Judge: PacifiCorp proposal could threaten wildfire suit

A regulatory judge has said PacifiCorp’s proposal to significantly limit customer lawsuits could threaten pending wildfire claims, despite the company recently stating otherwise.

On Jan. 12 Judge Katharine Mapes with the Public Utility Commission (PUC) said claims in James et al vs. PacifiCorp could be impacted depending on how PacifiCorp applies the proposed rule.

PacifiCorp has asked PUC for leave to add a limited liability clause to its user agreement that would only allow lawsuits for physical losses resulting from use of its services. This would restrict noneconomic damages and damages from causes unrelated to service use like wildfires.

In a Dec. 28, 2023, PCU filing PacifiCorp defended the proposal saying the clause would not be retroactive and insisted it “cannot threaten” the collection of damages by James plaintiffs. 

Last year $94.4 million was awarded to 17 James plaintiffs and proceedings are under way to determine damages for roughly 5,000 remaining class members.

Mapes said Jan. 12 PacifiCorp’s wording left open the possibility that it might apply the clause to existing claims if damages were awarded after the policy took effect. She said existing damages may also be threatened if they are upheld on appeal after the clause takes effect, as PacifiCorp may treat an appeal decision as a new judgment.

As further evidence of her skepticism Mapes noted a seeming contradiction in PacifiCorp’s recent descriptions of its own proposal. While the company took a definitive stance in its Dec. 28 PUC filing, in civil court it pleaded ignorance as to the potential impacts of the clause.

In a Dec. 13, 2023, filing in James, PacifiCorp responded to a request for admissions by plaintiffs regarding the proposal’s impact on the lawsuit. PacifiCorp said after a “reasonable inquiry” it had “insufficient” information to say whether or not the proposal “would have any effect as to James class members.”

James plaintiffs had brought this inconsistency to Mapes’ attention in a rebuttal of PacifiCorp’s Dec. 28 filing submitted to PUC Jan. 11. They accused PacifiCorp of attempting to exploit the regulatory system to sidestep civil judgments, and described the company’s changing rhetoric with a quote from Shakespeare’s Macbeth.

“And be these juggling fiends no more believed, that palter with us in a double sense; That keep the word of promise to our ear, and break it to our hope,” said the filing.

Mapes said PacifiCorp’s “not so definitive” description of the clause “raises the specter” that the proposal could realistically harm James plaintiffs. She said, while this outcome was hypothetical and “might not be likely,” James plaintiffs had “valid and sufficient” grounds to be concerned.

For this reason Mapes’ ruling granted a petition by James plaintiffs to intervene in the matter, over PacifiCorp’s objections, and plaintiffs may now participate as a party to proceedings.

In a statement to The Canyon Weekly, PacifiCorp said it had no comment as to Mapes’ ruling or the inconsistencies in official filings.

Mapes has given PUC until April 9 to approve or deny PacifiCorp’s request. PacifiCorp has until  Jan. 23 to file an opening brief and intervenors may file briefs in response by Feb. 20.

PacifiCorp originally filed its request Oct. 24, 2023, claiming the limited liability clause was necessary to protect the company from the fallout of pending legal judgments. After a jury found PacifiCorp liable in June of 2023 for causing the 2020 Labor Day fires its credit was downgraded by S&P Global Ratings, with further downgrades considered likely.

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