Board recommends payments to Lower North Fork Fire victims; wrongful death not factored in

DENVER - The Colorado State Claims Board has begun the process of recommending how much the state should pay back victims of the Lower North Fork Fire, and the initial figures are lower than victims expected after the Claims Board announced it would not recommend payment for wrongful deaths and non-economic losses.

Victims of the Lower North Fork Fire have waited two years for the state of Colorado to pay them back for the fire that destroyed their community.

"This process has drug on and on. Having to make this decision 10 hours, or whatever that limited amount of time is, is a very hard thing for me to try and go through," said Sam Lucas whose parents died in the fire. 

Colorado's State Claims Board met Tuesday and Wednesday regarding millions of dollars in claims stemming from the Lower North Fork Fire.

The March 2012 fire, which started as a prescribed burn by the State Forest Service, destroyed 22 homes and charred 4,100 acres. Three people were killed. Sam Lucas, Linda Lucas, and Ann Appel died in the fire.

Attorney William Finger told 7NEWS that claims totaling between $11 and $13 million have been presented to the State Claims Board for consideration.

Posted online, the agenda for the meeting outlined the scheduled hearing, beginning with an opening statement from Attorney General John Suthers.

"As we all know too well, on March 26, 2012, the Lower North Fork Wildfire burned approximately 1,400 acres of land in rural Jefferson County, south of Conifer, Colo. The fire caused 3 fatalities, and numerous residences were destroyed or substantially damaged. At the time of the Lower North Fork Fire, the Colorado Governmental Immunities Act did not include a waiver of immunity for negligent supervision of a fire by the state of Colorado," said Suthers.

Suthers explained how the General Assembly retroactively waived immunity for liability of the state under the Colorado Governmental Immunity Act, "in any action for injuries arising from prescribed fires started by the state or any of its employees on or after Jan. 1, 2012."

In March 2012, immediately following the Lower North Fork Wildfire, 7NEWS began a six-week investigation into all aspects of the fire. The controlled burn, which was set by the Colorado State Forest Service, escaped its boundaries and burned out of control. 

7NEWS continued to uncover new information, and in May 2012 produced a 30-minute special entitled, "Investigating the Fire." 

The special investigation revealed how the Colorado State Forest Service violated the prescribed burn plan.

As a result, less than 24 hours after "Investigating the Fire" initially aired, state lawmakers announced a plan to change Colorado's immunity law, raising the cap originally set at just $600,000 for all victims of the fire.  One lawmaker said: 

"I watched the special last night on Channel 7 and it brought everything back. It was obvious Colorado made an error, an unforgivable error that will forever change the lives of these people." -Colorado State Sen. Bill Cadman, Senate Minority Leader

Within days, the legislature fast-tracked two pieces of legislation before the end of the 2012 legislative session:

1.    Creating a Lower North Fork wildfire commission

2.    Allowing victims of the Lower North Fork Fire to have claims heard in front of the state's claims board instead of going through the legal system

During a joint news conference in May 2012, Gov. John Hickenlooper, Suthers and both legislative houses announced a compromise that would allow Lower North Fork Fire victims a chance to avoid court and have their full claims heard by a state claims board on which Suthers sits.

A 7NEWS documentary, "Investigating The Fire," uncovered mistakes and miscommunication that resulted in legislative changes that were supposed to compensate the victims and guard against future tragedies.

Now, two years after the deadly wildfire, a group of more than 20 victims have begun to receive an answer regarding their claims. The Colorado State Claims Board announced amounts it is willing to recommend to the legislature for payment.  

The cases were previously reviewed by a Judicial Arbiter Group (JAG) and the recommended settlement amounts were submitted to the State Claims Board. The State Claims Board is not obligated to accept the recommendations.

JAG initally recommended $435,000 for the death of Sam Lucas, $435,000 for the loss of Linda Lucas, and $436,070 for the death of Ann Appel. For Ann's husband, Scott Appel, JAG recommended a non-economic award of $176,000 to cover discomfort, and loss of enjoyment at his home and business.

However, the Board made the following recommendations to lawmakers: Scott Appel should receive $3,185,868 for his loss; and the family of Sam and Linda Lucas should receive $408,000 for their loss; $388,024 was recommended for John and Catherine Campbell; $2,099,340 for Andrew and Jeanie Hoover's loss; $661,282 recommended for James and Jill Fildey; and a $588,436 claim was suggested for Coe Meyer.  Recommendations for the 21 claims considered Tuesday along with previous claims total $11,489,351.  

Appel and other claimants were given a form with the recommended payment amount and the instructions to select one of two choices: "LNFF Claiment chooses to have the State Claims Board issue a Recommendation on his (or her) behalf to the General Assembly for an additional payment." Or, "LNFF Claimant does not wish to have the State Claims Board issue a Recommendation on his (or her) behalf to the General Assembly for an additional payment."

If the victims do not accept the recommended payments, they can choose to file a suit and pursue payment through state lawmakers.

"I don't think the public understands what can happen to you by state employees who are covered by governmental immunity. I had no idea. I know now," said Appel.

Suthers explained the process at the beginning of Tuesday’s hearing and pointed out that government immunity was waived in order to provide payment to victims for "negligent supervision of a fire," by the Colorado State Forest Service.

"The board cannot, pursuant to statute, issue a recommendation to the General Assembly that includes an amount for non-economic injury," said Suthers.

"That's a hard pill for me to swallow. For my particular case, the essence of that is, for my parents who were both killed in the fire, the state, through this process isn't going to recognize their death," said Sam Lucas.

A number of victims showed up to the hearing Tuesday including Scott Appel, who lost his wife and home in the fire. JAG reviewed Appel’s claim and forwarded its suggestion to the Claims Board.

"Make it right, please," said Scott Appel, in response to the Claims Board deciding not to include wrongful death of his wife in their recommendation.

The amount offered to him is 30 percent less than the initial recommendation.

"The state needs to fix what it broke," said Appel.

Suthers said the Claims Board took the reports and claims for economic damages into consideration. He said the Claims Board is obligated by law to weigh, "fairness, public interest, and the interest of the state."

Now that the Claims Board has reached decisions regarding Tuesday’s claims, victims will need to decide if they accept or deny the claims offered. The Claims Board will recommend payments that are approved by victims to the General Assembly. It’s up to Colorado lawmakers to delegate funding for payment of the claims in the state budget.

Carolyn Tyler, spokesperson for the office of the Colorado Attorney General, said victims of the Lower North Fork Fire are not required to accept the settlement offers.   

"Claimants may certainly wait for future State Claims Board meetings and future appropriations by the General Assembly.  However, Colorado’s General Assembly is meeting on the budget now, and if claimants want to receive timely payment it is in their best interest to communicate their wishes now, so funds may be appropriated during this legislative session," said Tyler.

Victims who are not ready to accept the recommended offers have the option to seek compensation from the General Assembly next year.

 

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