The Texas judge handling more than 100 personal injury, wrongful death and property damage lawsuits brought by hundreds of plaintiffs against scores of energy companies related to Winter Storm Uri has dismissed the allegations against more than 60 natural gas companies in four of those cases.
Judge Sylvia Matthews ruled Jan. 26 that natural gas companies such as Anadarko, Apache, Atmos, Comstock, El Paso, Energy Transfer, Kinder Morgan and XTO will not have to stand trial for any damage or deaths caused by power outages during the four days in February 2021 in which Texas was hit with record cold temperatures and sleet and snow.
The judge’s order came in four specific test cases, also known as bellwether trials, which have been selected jointly by the lawyers on both sides to address the legal issues presented in each of them.
In a two-page opinion, Judge Matthews, appointed by the Texas Supreme Court to be the multidistrict judge handling most of the Winter Storm Uri lawsuits, adopted the arguments made by lawyers for the natural gas companies that any conduct by the natural gas firms was too remote to have caused the damages claimed in the lawsuits.
The judge, however, declined to dismiss many of the claims against the power generators and electric providers, who are also named defendants in hundreds of the lawsuits.
The two-page opinion provides no legal reasoning or explanation by the judge, which could provide issues if any of the plaintiffs decide to appeal, according to multiple lawyers involved in the litigation.
Lawyers also say it is unclear if Judge Matthews’ decisions in these four cases will automatically apply to the hundreds of additional lawsuits pending.
In briefs filed last year, lawyers for the natural gas companies argued that the cases against their clients argued that Texas law “imposes no tort duty on a company to supply a product to another.”
“Plaintiffs ask the Court to create such a duty,” Hicks Thomas partners John Deis and Stephen Loftin, who represent natural gas companies, wrote in the motion to dismiss last year. “Plaintiffs assert that NGDs [natural gas defendants] have a tort-law duty to supply natural gas for use as fuel to generate electricity. Plaintiffs argue that the NGDs are liable to every member of the public in the state of Texas for failing to do so.”
Deis and Loftin argued to the judge that such claims “have no basis in law” and should be dismissed.
The lawyers also argued that the alleged misconduct by the natural gas companies “is too remote to be the legal cause of plaintiffs’ harm.”
“NGDs do not generate, transmit or otherwise provide electricity to plaintiffs or other retail Customers,” Weis and Loftin argued. “Plaintiffs’ allegations amount to a claim that the NGDs created a condition in which there was less natural gas – one potential fuel source – available for other parties to buy and use to generate and transmit electricity to plaintiffs.”
“That allegation, however, fails to state a claim against the NGDs for negligence because the conduct identified in the petition cannot be the legal cause of plaintiffs’ injuries,” the lawyers stated. “Plaintiffs’ theory is also inconsistent with Texas law because plaintiffs contend that the NGDs harmed plaintiffs merely by participating – or perhaps more accurately, not participating – in an industry.”
Weis and Loftin, in their legal briefs, point out that the plaintiffs’ lawyers did not “segregate claims concerning storage, processing, or transportation of natural gas to pipeline or midstream companies.”
“Rather, plaintiffs’ theory is that all participants in the natural gas market are collectively liable as an industry for allegedly failing to make sufficient fuel available for purchase and use by electricity generators,” the lawyers argued.
In the two-page opinion, Judge Matthews did not state which of the arguments she adopted in granting the natural gas companies’ motions to dismiss.
The cases are filed in Harris County District Court include Valerie Daniels v. CenterPoint Energy (Cause No. 2021-18513), Ernest Peterman v. ERCOT (Cause No. 2021-18532) and Bernadine Edwards v. ERCOT (Cause No. 2021-84438).