ERCOT faces lawsuits over outages
San Antonio lawyer is part of legal team that has filed two complaints against grid operator
The snow hadn’t even completely melted before lawsuits began cropping up against the Electric Reliability Council of Texas over its response to the winter storm that socked the state last week.
Nationally prominent litigator Mikal Watts of San Antonio is part of legal teams that have already filed two such lawsuits, including one involving a Houston man believed to have died of hypothermia Tuesday as a result of a power outage that left him without heat in his home.
ERCOT, the nonprofit that manages the grid that provides power to some 26 million Texans, instituted rolling blackouts to avoid a catastrophic grid failure. Power plants around the state were unable to withstand the frigid temperatures, and millions of Texans were plunged into the dark without heat.
“ERCOT has singularly failed to meet its mission,” Watts said. “It not only failed to provide reliable electricity to people of the state of Texas, it put their safety in grave danger, leading to the unnecessary deaths of countless Texans.”
At least 35 deaths reportedly occurred in Texas as result of the storm.
The action in Harris County was filed Monday in the death of Doyle A. Austin, whose house lost power late in the evening of Feb. 14. He was still without power the following evening when a relative found him unresponsive. Paramedics were unable to revive him.
The lawsuit over Austin’s death was brought by his daughter Linda Brown. She’s suing ERCOT and local power company Centerpoint Energy for negligence in failing to prepare for the state’s power needs. She also has a gross negligence claim to recover punitive damages.
ERCOT spokesperson Leslie Sopko declined to comment on the lawsuits.
“Our thoughts are with all Tex
ans who have and are suffering due to this past week,” Sopko said in an email. “Because approximately 46 percent of privately owned generation tripped offline (the morning of Feb. 15), we are confident that our grid operators made the right choice to avoid a statewide blackout.”
A Centerpoint representative said it doesn’t comment on litigation.
On Friday, Watts and other lawyers filed a suit against ERCOT on behalf of Corpus Christi resident Donald Mccarley. The suit also names the local electrical provider, AEP Texas, and its parent company, American Electric Power Co.
Mccarley’s claims include gross negligence, but he’s also alleging
the rolling blackouts amounted to a “taking of property” without adequate compensation — a violation of the Texas Constitution. He also says the loss of power “interfered with (his) use and enjoyment of his home.”
The complaint doesn’t specify the amount of damages Mccarley seeks, but last week’s outages resulted in a “multibillion loss” for state residents, Watts said.
“It is the result of Texas utility companies choosing to ignore legislative guidelines created after the clarion call of the freeze 10 years ago,” Watts said. “They were told how to prevent it from happening again, and that was to winterize their equipment.
“They ignored that advice and chose dollars over the safety of Texans,” he added. “That Faustian bargain has led to many Texans freezing to death in their own homes. That is solely the fault of
the deregulation of the electrical utility grid and greedy corporations putting profits over people.”
AEP Texas spokesman Larry Jones said it does not comment on pending litigation.
A $100 million lawsuit filed against ERCOT and utility Entergy Texas on Saturday alleges widespread blackouts contributed to the hypothermia death of an 11year-old boy in Conroe.
In another Harris County complaint filed Thursday, a Fort Bend County couple seek more than $10 million in damages against ERCOT and Centerpoint Energy.
Mauricio Marin had been convalescing at his home from lingering health problems caused by COVID-19 when the storm hit. He relies on an oxygen tank to breathe, but he was unable run the equipment without electricity, the lawsuit says.
“Mauricio felt like he was was
being suffocated with a lack of air to breathe in a cold and hopeless environment,” the suits adds. His health deteriorated as a result. Doctors had advised him any deprivation of oxygen would affect his heart, his damaged lungs and his immune system.
His wife, Daysi Marin, spent hours trying to keep him warm and breathing, the suit says.
Whether ERCOT is entitled to sovereign immunity protecting it from lawsuits remains an open question.
A Dallas appeals court ruled in 2018 that ERCOT is protected from lawsuits, but last June the Texas Supreme Court agreed to review the decision. The state’s high court has yet to rule in the case, which involves Dallas utility Panda Power.
“Certainly, the court’s decision here will have implications for viability claims against ERCOT related to (last) week’s event,” said Ben Mesches, the lead appellate attorney representing Panda Power. “We certainly believe that ERCOT should be transparent, accurate and accountable in court. That is the central issue and question before the court.”
Brandon Rottinghaus, a political science professor at the University of Houston, said a ruling against ERCOT is a long shot, given the Supreme Court’s conservative majority is unlikely to overturn the appeals court decision. He said, however, that political pressure should mount on the justices — who face re-election in Texas — to hold ERCOT accountable for the catastrophic power failure and its deadly and devastating consequences.