Q: My father was killed in an accident that was not his fault.  As a result, I ended up with an inheritance.  Will the inheritance count against me if I sue the wrongdoer who caused my father’s death?

A: No.  At least not in a case in California.  It’s not what you received as a result of your father’s death that counts.  Rather, in a wrongful death case, the “measure of damages” is what the heirs “were receiving at the time of the death of the deceased” and what such heirs “would have received had decedent lived.” Johnson v. Western Air Exp. Corp. (1941) 45 Cal.App.2d 614, 622.  

In fact, what a plaintiff inherited as a result of a wrongful death of a family member is not supposed to even be allowed into evidence.  That’s because the financial benefits an heir may have received as a result of the death are not relevant to their damages.  Further, a wrongdoer may not escape responsibility for his negligent acts by pointing to the plaintiff’s receipt of funds that the wrongdoer didn’t provide. Any benefit that a plaintiff received as a result of a wrongful death is not to be considered in assessing damages in a wrongful death action, either as an item of deduction or a ground for awarding only nominal damages, and so the jury  should not even be told of an inheritance.

This principle was first set forth in a case called McLaughlin v. United Railroads. In that case, the heirs of Mrs. McLaughlin brought an action against a Railroad for the wrongful death of their mother.  The family had inherited from their mother assets which generated rental income: “a return in no wise dependent upon the skill, ability, or exertions of the deceased.” The Railroad argued to admit evidence that the children had “by the death of the mother come into the ownership of all of her property” to show that the compensation they were entitled to from the Railroad should be reduced to prevent a double recovery.  In rejecting the Railroad’s argument the Court stated:

This rule of evidence has its foundation in the refusal of the court to allow the defendant to benefit by his own wrong, to lessen his responsibility in damages for the injury which he has inflicted, by a showing that, quite fortuitously, through no contribution of defendant’s own, the plaintiffs have received a certain pecuniary benefit.

McLaughlin, supra, 169 Cal. at 498 (emphasis added).

                Today, the rule in Calfiornia remains: income or property that transferred to the victim’s heirs as a result of the wrongful death should not be admitted as evidence at trial.

On October 31, 2022, the Fire Victim’s Trust announced an additional sale of 35 million shares in PG&E stock at $15.25 per share to provide compensation for victims of the 2015 Butte, 2017 North Bay, and 2018 Camp Fire. This news comes shortly after the Fire Victim’s Trust sold 35 million shares at $13.65 per share in early October.

The Fire Victims Trust, which reviews and values victims’ claims, was established in July 2020 after PG&E went through Chapter 11 bankruptcy. For the fire victims, the bankruptcy had the unfortunate effect of delaying claims, though the delay could have been much longer without the establishment of the Fire Victims Trust. The Trust was set up to ensure the fire victims were paid the largest amount of their damages possible.

To fund payments to the fire victims, the Trust continues to sell portions of the approximately 480 million shares of PG&E stock that were deposited with the Trust as part of the bankruptcy. To date, the Trust has cashed out about 170 million shares. The Trust Agreement does not allow the Trust to issue shares to claimants. It must pay all awards in cash. Therefore, the Trust must eventually sell all the stock it is holding.

As of October 28th, 2022, the Trust has issued determination notices (a statement of the amount to be paid) to 86% of the claimants. The Trust hopes to have issued determination notices to 95% or more of the claimants by the end of the year. After a claimant accepts the determination notice, the Trust pays 45% of the amount of the determination as an initial pro rata payment. To date the Trust has paid out about $5.36 billion to fire victims.

Many fire victims who have already received their initial pro rata payment have asked about when they can expect to receive further pro rata payments. Unfortunately, the Trust has not yet announced when it will make additional payments to the victims following the initial pro rata payment. However, as the Trust issues determination notices to more and more claimants, the Trust should have more clarity as to the total amount to be paid on the victims’ claims. Additionally, as it sells more stock, it will also have a better idea of how much money will be available to pay those claims. As a result, we anticipate that the Trust should be in a position to make further payments to the victims in early 2023. We cannot guarantee that the Trust will make additional payments then, but we believe they should be able to. We will inform all of our clients once it becomes clear when an additional payment will occur.

 

After a “meticulous and thorough investigation,” Cal Fire concludes that the Dixie Fire was caused by a tree contacting PG&E’s electrical lines.

No surprise, given that PG&E all but admitted as much last July.

We can expect Cal Fire to now join the lawsuit we’ve filed on behalf of our Dixie clients, seeking to recover from PG&E its costs of fire suppression.

One of the first post-fire issues landowners face is property cleanup. Debris can include homes, vehicles, structures, personal property, chemicals, and toxins.

Debris cleanup also includes burnt trees. How and when to remove damaged trees is one of the most complicated situations an owner will have to deal with post-fire.

How and when to remove and clean up the trees

Burnt trees that are still standing are weakened by the fire and at risk of falling down at any time. They are therefore a hazard to anyone on the property. Therefore, to safely work on cleaning up the other debris on the property, the dangerous trees, often called “hazard trees,” must first come down.

Before felling the trees, owners should document the damage .  Take wide angle photographs that show the tree, the tree’s location on the property, and the damage all in one shot.

Factors to consider in deciding to take down a tree:

Is the tree a hazard to the public?

If the tree poses a threat to a public right of way or property like a road, ultimately the county can force you to remove the tree or allow them to enter your property so that the county can remove it.

Will the tree survive?

Many trees look completely burned, but will recover. Nobody wants to cut down trees that will end up surviving. An arborist can provide an opinion. In general, however, oaks are hardy while pine trees can withstand very little fire damage.

Does the tree pose a risk to your own property?

Keep in mind that there may be large equipment being used on the property during cleanup and rebuilding. Many operators won’t work on properties with trees in danger of falling nearby.

A still-standing tree may appear stable, but with increased winds, rain, and snowfall approaching it may actually pose a risk to someone on your property.

There can be root damage from the fire that hides the damage and the risk of the tree falling.  Again, an arborist can help.

What happens to the wood when the tree is felled?

Will the tree be cut in long enough sections to be worth milling, or “lopped”?

Will the contractor haul away the tree or leave it on your property?

If they leave trees on your property, will they stack and organize them?

If PG&E or the County cut down your trees, what happens?

What kind of damages can PG&E be made to pay for?

The laws in California provide unique avenues for recovery that don’t exist in other states.  It’s important to hire an experienced CA attorney to maximize the recovery in your case.  PG&E can be required to pay for the diminution in value that your property suffers as result of the loss of the tree, the value of the tree using the “trunk formula method” of valuing trees or, in some cases, the cost of replace the tree with one of like kind, size, and species.

We are experienced PG&E wildfire attorneys. If you have standing dead trees on your property after the Dixie Fire, call today and we’ll walk you through what you stand to recover for your trees. You will be connected to one of the attorneys in the firm that have worked closely with expert arborists, foresters, and engineers in past cases and know the complexities of these cases first hand. The laws governing tree damages are complex and date back to the 1800s, hiring an experienced attorney like those at Danko Meredith to guide your case to a resolution is the best thing you can do in your recovery.

FEMA aid is now available for Dixie Fire survivors.  Aid can include money for temporary housing, for repairs, and for certain personal properly losses.

Deadline for registering is October 15.

The catches:

  • By and large, FEMA helps only when the loss is uninsured or underinsured.  For example, if your insurer provides Alternative Living Expense coverage, FEMA will not provide money for temporary housing.
  • You will have to repay any benefits you receive from FEMA out of any settlement you receive from PG&E as part of a Dixie Fire Claim.

To apply:

  1. Visit DisasterAssistance.gov
  2. Download the FEMA App
  3. Call the FEMA Helpline at (800) 621-3362

You will need to provide FEMA with information concerning your insurance coverage and information concerning any denial of benefits.  You’ll hear from FEMA concerning your eligibility after you’ve completed the registration process.

I was covered for the Dixie Fire under the California FAIR Plan.  What now?

The good news is that FAIR Plan policies pay for the cash value of your dwelling, and the cash value of its contents.  But that’s about it.

  1. No rebuilding costs. Most FAIR Plan policies pay only for the dwelling’s actual cash value.  They don’t pay for the costs of replacing or rebuilding the home, which is almost always substantially more than its value.
  2. Limited relocation costs. Most FAIR Plan policies cover the cost of renting a place to live while you are out of your house, but only up to a dollar limit of 10% of your dwelling coverage, regardless of how long it takes to rebuild or replace your home. And while private fire insurance policies pay for “Additional Living Expenses” such as the costs extra mileage, pet boarding, meals, furniture rentals, and so on, FAIR Plan policies do not.

And of course, regardless of whether you have private insurance or a FAIR Plan policy, insurance won’t cover the costs of replacing trees that were burned, the true value of sentimental items that burned, income you may lose, or emotional trauma you may suffer.  To be made whole, you need to make a Dixie Fire claim against PG&E.

To make a claim against your FAIR Plan, it’s not enough to call your insurance broker.  You have to make a claim on the FAIR Plan website.  You’ll need your policy number.  Here’s the link:  Make a FAIR Plan claim.

The Dixie Fire is now the second largest wildfire in California history, at nearly 500,000 acres.   So far, it has destroyed more than 1000 structures, including 550 homes.  It has totally destroyed the town of Greenville.

Though the fire boundaries are huge, it’s unlikely that PG&E’s financial liability from the Dixie Fire will come close to its liability for the Camp or North Bay Fires.  Those fire burned more than 25,000 structures.

Estimates of the dollar amount of damages caused by the Dixie Fire thus far are hard to come by.  Guggenheim  Securities says that total damages may already exceed $1 Billion.  If that is true, and if PG&E must pay for all of it, then PG&E’s liability would exceed the limits of its private insurance.  To pay survivors’ claims,  PG&E would then have to draw from the state-sponsored wildfire insurance fund. Currently, there is $10 billion available in the fund for that purpose.  (The insurance fund is unrelated to the Fire Victims Trust Fund, which was set aside for the victims of the Camp, North Bay, and Butte Fires.)

Right now, then, there’s money to cover the Dixie losses.  The worry is that we’re still early in the fire season.  The Dixie Fire might not be the only drain on the state-sponsored fund.

 

 

PG&E now acknowledges that its equipment likely ignited the Dixie Fire.  In its July 18 report to state regulators, it admits that there was a power outage, that a troubleman went to investigate, that the troubleman saw a tree leaning against PG&E wires, that the troubleman saw blown fuses on the ground nearby, and that he also saw a fire starting near the base of the tree.

“The responding PG&E troubleman observed from a distance what he thought was a blown fuse on the PG&E Bucks Creek 1101 12kV Overhead Distribution Circuit uphill from his location. Due to the challenging terrain and road work resulting in a bridge closure, he was not able to reach the pole with the fuse until approximately 1640 hours. There he observed two of three fuses blown and what appeared to him to be a healthy green tree leaning into the Bucks Creek 1101 12 kV conductor, which was still intact and suspended on the poles. He also observed a fire on the ground near the base of the tree. The troubleman manually removed the third fuse and reported the fire, his supervisor called 9-1-1, and the 9-1-1 operator replied they were aware of the fire and responding. CAL FIRE air support arrived on scene by approximately 1730 hours and began dropping fire retardant and water.”

PG&E is supposed to keep trees trimmed at least 4 feet from its electrical lines to prevent just this sort of fire.  PG&E failed to do that.  It appears PG&E is liable for the Dixie Fire.

But can PG&E pay?  PG&E is now out of bankruptcy, so claims for damages will be made in state court directly against the “New PG&E,” not in federal bankruptcy court against the Fire Victims Trust.  According to PG&E recent filing with the Securities and Exchange Commission, PG&E has approximately $300 million in insurance coverage for the Dixie Fire.  Fires that PG&E ignites after August 1 are covered by an additional $600 million:

“In April 2021, the Utility purchased approximately $268 million in wildfire liability insurance coverage for the period of April 13, 2021 to April 1, 2022, and approximately $32 million in wildfire liability reinsurance for the period of April 1, 2021 to April 1, 2022 at a cost of approximately $220 million. This coverage is in addition to approximately $11 million in existing wildfire reinsurance for the period of July 1, 2020 to July 1, 2021 and approximately $600 million in existing wildfire liability insurance purchased by the Utility in August 2020 for the period of August 1, 2020 to August 1, 2021. On August 1, 2021, the $600 million of existing wildfire liability coverage is scheduled to renew for the period of August 1, 2021 to August 1, 2022 at a cost of approximately $516 million pursuant to multi-year policy terms. The Utility’s wildfire liability insurance is subject to an initial self-insured retention of $60 million.”

Will PG&E’s ultimate liability for the Dixie Fire exceed the $300 million in available insurance coverage?  It’s too soon to tell.

 

KPIX5 asks Mike Danko about the criminal charges brought against PG&E for its role in the Kincade fire.  Danko explains that even if a jury renders a guilty verdict, no one at PG&E will go to jail.  It’s the civil justice system, not the criminal justice system, that compensates victims for their losses.

 

Kincade Fire and PG&E - Mike Danko Explains
Danko Explains What PG&E Indictment Means