A Summer’s Rite – Wildfires in the West  

Subrogation & Recovery Alert

July 16, 2013

Wildfires have again besieged the Western United States. Severe heat and drought conditions increase not only the potential for fires but the available fuel if a fire ignites. One currently active wildfire is located in the Santa Fe National Forest: the Tres Lagunas fire burned more than 10,000 acres of land and was started by downed utility lines. Although the Tres Lagunas fire was contained before any property damage occurred, it is interesting to use it as a case study to consider when investigating fires started by utility lines.

When evaluating utility line fires when the specific failure mode is not yet known, it’s important to first retain an origin and cause investigator certified in wildfire investigations. Investigating a wildfire requires different investigation techniques from structure fires. Experienced wildfire investigators can quickly and efficiently evaluate a large scene.

The Tres Lagunas fire started when a power line was knocked down by strong winds. Other wildfires have ignited when dead trees fell onto power lines, or when heavy winds cause arcing between power lines. Power lines that touch or are in contact with limbs can arc and ignite either dead or growing trees.

An additional important piece of information to obtain when investigating and evaluating a utility related wildfire is the relevant easement. An easement is a right of one party to use the land of another. For utilities, an easement allows utility lines or other components owned by a utility to be installed over land owned by the state, federal government or individual homeowners. Easements are recorded documents and provide not only the terms of the easement but it also may set forth specific requirements for maintenance of the land within the easement. An easement may also have specific maintenance requirements for a utility regarding land and vegetation outside the easement area. For example, an easement may impose a duty to inspect the area outside the easement. Typically, easement widths are set at 10 feet on either side of the center for distribution lines and 20 feet in each direction for higher voltage transmission lines. These requirements may become significant in evaluating subrogation potential if the tree or vegetation that came into contact with the utility line was within the easement or just outside but still within the area that was required to be inspected by the utility.

Another important document to obtain is the applicable tariff. Most utilities have a tariff, filed with the state agency or commission that sets forth the rates at which they provide their services, and the rules, regulations and practices relating to those services. Generally, a tariff will set forth the utilities’ obligations, the customer’s responsibilities and general scope of the relationship. The tariff should be reviewed in order to determine the utilities practices and responsibilities as well as any potential limitations of liability.

Finally, another important source of information is legislative statutes promulgated by the states. Many states have statutes that impose duties on utilities to maintain and trim trees that are within a specific distance from the utility lines. These same statutes may similarly prohibit homeowners or landowners from maintaining the vegetation around utility lines as a safety precaution. These statutes may impose further duties on the utility company.

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To discuss any questions you may have regarding wildfires, or how the issues discussed in this Alert may apply to your particular circumstances, please contact: Sarah Earle Killeen at skilleen@cozen.com or 720-479-3893.