At 10:30 a.m. on the morning of Thursday, December 30, 2021, two separate wildfires broke out in Boulder County, Colorado near the towns of Superior and Lafayette. One of them—known as the Middle Fork Fire—was contained later that day and caused no property damage. Unfortunately, the other—known as the Marshall Fire—damaged over 6,000 acres, resulted in the destruction of 1,084 homes, and caused a combined half-billion dollars in property damage. The fire was contained by January 3, 2022, but not before it became the most destructive wildfire in Colorado history destroying more than twice as many homes as the Black Forest fire in 2013. As the insurance industry begins the arduous task of adjusting and paying thousands of insurance claims, subrogation professionals began to search for a cause and a target.
Early reports suggested that a downed power line was responsible for the fire, which was believed to have originated on private property near the intersection of Marshal Road and El Dorado Road in Boulder, Colorado. MWL has been heavily involved in this investigation and subrogation of last year’s California wildfires. In fact, MWL Partner Katherine Sandoval and Senior Associate Zahra Aziz out of our Santa Ana, California branch office will be presenting a complimentary webinar on Subrogating California Wildfire Claims on February 10, 2022. A subrogation investigation into the Colorado wildfire has also been initiated by MWL Partner Mark Solomon, who is licensed in Colorado. The results have been slow in coming, but persistence is paying off.
The fire began on December 30, 2021, as a brush fire near Louisville, Colorado, a city in Boulder County, northwest of Denver. By 3:00 p.m., more than 30,000 residents had been evacuated in Louisville and nearby Superior. In three short hours over 580 residential structures had been destroyed along with damage to retail stores, hospitals, and hotels. As of 6:00 p.m., the fire was estimated to be 1,600 acres with zero containment. The affected zip codes were 80020, 80021, 80026, 80027, 80301, 80302, 80303, and 80305.
Prompt and aggressive investigation is called for in any wildfire subrogation effort. A subrogating carrier has the burden of proof in any claim brought against a responsible tortfeasor, and unlike California, where the responsible party is a governmental entity, the claim of eminent domain or inverse condemnation require that the event or “taking” be for a public purpose. One potential source of the wildfire is a piece of property owned by a religious group known as the “Twelve Tribes” and a shed located on that property. A warrant to inspect the property was obtained but no charges have been brought. But as of January 22, 2022, the fire investigation took an unexpected turn as investigators began to look at an underground coal fire as a possible cause of the fire.
One mine—known as the Marshall Coal Mine—is now the focal point of investigators as a potential source of the Marshall wildfire. The mine is located south of the Marshall Mesa trailhead off Highway 93 and may have ignited surface combustibles through vents at the top of the mine. Colorado has an estimated 38 abandoned coal mines which contain underground fires that have been burning for years and which have long been a concern because of their propensity to start wildfires at the surface. Coal seams can spontaneously ignite, and leftover coal deep underground can burn for as long as 100 years. One such coal seam fire in Germany has been burning since the 17th Century. Another in Australia—known as the “Burning Mountain”—has been burning for 6,000 years.
Mine maintenance is critical in these situations, as Colorado learned back in 2002 when coal seam fires burned 12,000 acres and destroyed 29 homes in Glenwood Springs. The Colorado Division of Fire Prevention and Control has asked for a team of state and federal investigators to put together a report of the conditions necessary for this mine to have started the Marshall wildfire.
Officials in Colorado have been monitoring and “tending” the smoldering underground mine fires for years. Clay and soil are used to cap the mines and cut off oxygen to the upper levels of the fire. Yet, in order to prevail in a subrogation suit, negligence must be proven. Coal seam fires are hard to detect due to their out-of-sight nature; and once detected, are even harder to extinguish. Recovering half a billion dollars in subrogation claim payments will be no picnic. Many coal seam fires are ignited by human activity, usually in the process of coal mining or waste removal, but proving liability can be very difficult.
Investigation into the Colorado wildfire has turned up some interesting information which may be helpful to potential subrogation claims. It turns out that in 2005, a wildfire which occurred in the same area where the Marshall Fire is believed to have started is thought by some to have been sparked by a coal seam fire in the same Marshall Coal Mine. Testing back then showed ground temperatures of 300 degrees and higher. On the day of that fire back in 2005, a state engineer called for an “emergency” response and indicated that there was a particular danger to nearby houses. Over 275 tons of gravel was hauled in to cover the three vents emitting smoke and steam, but officials noted that the vents “have the ability to cause future surface burning,” and declared the site an emergency. The nearby city of Boulder was urged to remove any vegetation from surface cracks as well as begin a long-term maintenance and monitoring program in the area. It is unknown if that was ever done.
When a loss such as this occurs, a limited number of mine maintenance experts are available to provide consultation and expert opinions, and they are usually gobbled up quickly. Prompt and thorough investigation of a fire such as this along with the retention of the necessary experts is indispensable to recovery efforts. If you have claims relating to the Marshall Fire or have questions regarding subrogation efforts, please contact Mark Solomon at msolomon@mwl-law.com.
