She spent three weeks in the hospital in January after being diagnosed with the coronavirus.
When she was discharged, she was required to use an oxygen machine to breathe. She needs it 24 hours a day.
Then, on Feb. 15, like millions of Texans, the winter storm knocked her power out.
But for Hidalgo County resident Mary Allen Nava, the long nights in the dark during the frigid weather were compounded by a new fear.
“Plunged into a cold darkness, Plaintiff began to have difficulty breathing. After fighting off COVID-19, she now thought that she was going to die as a result of the loss of electricity,” the lawsuit stated.
The suit targets AEP Texas, which manages transmission networks that provide electricity to thousands of customers in the Rio Grande Valley, as well as the Electric Reliability Council of Texas, or ERCOT, a nonprofit governed by a board of directors and subject to oversight by the Public Utility Commission of Texas and the Texas Legislature that manages the flow of electric power, representing about 90% of Texas’ total load.
The case was removed from state to federal court on Friday.
Between Feb. 14 and 18, freezing weather across the state caused power outages for millions across the state and much of the blame has been placed on ERCOT, which saw its entire board resign in the days and weeks following the outages.
As for Nava, she said in the suit that she lost power for five days and the uncertainty of her recovery from COVID-19 plus her history of asthma caused her physical and mental health to deteriorate, resulting in her suffering significant personal injury.
“In the days that have followed, Plaintiff continues to have difficulty breathing, and has required additional medical treatment due to the hours that she was unable to run her necessary medical equipment. Power was finally restored five days later, but the damage had already been done,” the lawsuit stated.
Her attorneys said in the suit that Nava also has a medical history of severe asthma and requires the use of a nebulizer machine, which uses electricity to run.
She needs to use the nebulizer every four hours.
Her attorney, Frank Spagnoletti, of the Houston-based Spagnoletti Law Firm, says ERCOT and AEP Texas are to blame for her suffering due to the outages.
“These folks that are on life-saving equipment — and some of my clients were critical-care designated — those folks were stuck down, and when the switch went off, their lives were going off minute-by-minute and second-by-second until they were able to get evacuated or power came back on and they had the hope of life again,” Spagnoletti said Wednesday.
The lawsuit alleges that ERCOT failed to adequately assess the electricity needs of Texas’ residents.
AEP has said previously that ERCOT required it to shut off power and that it was not able to return electricity to the load until ERCOT gave it the green light, which was based on usage and availability of energy throughout the state.
While the lawsuit alleges ERCOT and AEP Texas were not prepared, it says that Nava was.
“With no warning issued beforehand, Plaintiff’s electricity was cut off by AEP Texas. Unlike the defendants, Plaintiff planned and prepared for the winter storm that hit the state. Unfortunately, Plaintiff could not know that ERCOT and AEP Texas would decide to cut-off her electricity with no end in sight and with no warning given beforehand,” the lawsuit stated.
Spagnoletti, who has clients across the state with similar cases, said these companies need to be held accountable.
“Ms. Nava, along with a number of other clients of mine who were recovering from COVID and on oxygen machines were deprived of life-saving equipment because of human error. And whether it’s ERCOT or AEP or Reliant, these companies need to be held accountable. And whether they have the case in the state court where it was originally placed or in the federal court, juries in any place in this country will understand this is not the way to provide electrical power to the citizens of the state of Texas or any state of the United States, and they need to be held accountable by the jury for the wrongful acts,” Spagnoletti said.
The attorney described the case being moved to federal court as an attempt by the companies to run away from the allegations.
“They removed the case to federal court because they are trying to run, but I will tell you they cannot hide,” Spagnoletti said.
In a statement, AEP spokesperson Lee Jones expressed empathy for those impacted by the outages.
“We understand the frustrations and hardships faced by many customers who were affected by the outages from the unprecedented winter weather and the resulting load shed interruptions that were required of AEP Texas by the Electric Reliability Council of Texas. Unfortunately, we are unable to comment on any ongoing or pending litigation,” Jones said.
However, in its response to the lawsuit, AEP generally denies all of Nava’s allegations and offers several affirmative defenses, including that “damages complained of by the Plaintiff and claimed in this case were the result of one or more acts of omissions of negligence committed by others over whom Defendant had no control.”
The Monitor emailed ERCOT’s generalized media inquiry email address to request a comment, but the agency did not respond.
In its response to the lawsuit, ERCOT generally denies all of Nava’s allegations and said that all of her claims are barred by sovereign immunity, which protects state and local agencies from claims brought in lawsuits.
The Texas Tribune reported Friday that ERCOT is making this same claim in at least 35 lawsuits that have been filed against it.
According to the Texas Tribune, ERCOT claims it is an arm of the state government and has even had some success in using this same argument in a lawsuit it prevailed in 2018 after an appellate court ruled that even though it’s a nonprofit, it does have sovereign immunity.
An initial conference in federal court is scheduled for mid-May.
