Directional Drilling Insurance in Delaware

In most of the country the way a prime secures a broad indemnity is to draft it precisely. The general rule is that a transfer of the indemnitee’s own negligence must be stated in clear and unequivocal terms, and a careful drafter who states it that way gets the transfer. Delaware wrote a sentence specifically to defeat that. Its statute voids the covenant even where it is crystal clear and unambiguous in doing exactly what the drafter intended.

That makes Delaware one of the strongest positions a boring subcontractor holds anywhere — with one significant exception, and it sits precisely where long fiber route runs. §2704 protects the subcontract and 26 Del. C. ch. 8 names the method. The event both are written around sits on the Directional Drilling Insurance pillar and the pollution liability page.

A statute written against good drafting

6 Del. C. §2704(a) is expansive about the contracts it governs. It reaches agreements with the State, any county, municipality or political subdivision, or any agency, commission, department, body or board of them, as well as any contract with a private party — a deliberate inclusion of public contracting that runs opposite to states which exclude it. The work it covers is the construction, alteration, repair or maintenance in the State of a road, highway, driveway, street, bridge or entrance or walkway constructed thereon, and building, structure, appurtenance or appliance, including the moving, demolition and excavating connected therewith.

The rule then voids a covenant purporting to indemnify or hold harmless the promisee, indemnitee or others for damages arising from liability for bodily injury or death or property damage caused partially or solely by, or resulting partially or solely from, or arising partially or solely out of, the negligence of the promisee or indemnitee or others than the promisor and its subcontractors, agents, servants or employees.

Two things are broader than the norm. The trigger is partial as well as sole fault, so the ordinary shared-fault strike is inside the rule rather than outside it. And the reach extends to others than the promisor — on a fiber build, the prime’s other trades and its locating vendor.

Then the sentence that distinguishes Delaware from every other state on this site. The covenant is void and unenforceable even where it is crystal clear and unambiguous in obligating the promisor to indemnify the promisee from liability resulting from the promisee’s own negligence. Elsewhere the contest is about drafting quality: was the intention expressed clearly enough to accomplish the transfer? Delaware removed the contest. Clarity is not a route to enforceability here, and a sophisticated prime’s carefully worded clause is in exactly the same position as a clumsy one. The section adds that it applies to all phases of the preconstruction, construction, repairs and maintenance described, and that nothing in it limits its application to preconstruction professionals such as designers, planners and architects.

The exception is the part to map before pricing. §2704(a) provides that the section shall not apply to any obligation owed to the Department of Transportation pursuant to a contract awarded under Title 17 or Chapter 69 of Title 29. State highway corridor is where a great deal of linear route goes, and a contract awarded under those provisions falls outside the protection entirely. The same crew, the same rig, the same bore — and on the DelDOT segment the indemnity clause is governed by ordinary contract principles with none of the above applying to it.

Subsection (b) preserves the insurance side: nothing in (a) voids or renders unenforceable policies of insurance issued by duly authorized insurance companies insuring against losses or damages from any causes whatsoever. So the endorsement is available and useful; what it cannot do is deliver a transfer subsection (a) has voided on the contract side.

A dig law that names what a bore actually is

Field-side rules are 26 Del. C. chapter 8, the Underground Utility Damage Prevention and Safety Act. It begins by defining excavation in a way that reads like a description of this trade: any operation in which earth, rock or other material in the ground is moved, removed or otherwise displaced or disturbed by tools, equipment or explosives, including grading, trenching, digging, dredging, ditching, drilling, augering, tunnelling, boring, backfilling, post pounding, driving objects into the ground, installation of form pins, hammering, scraping, and cable or pipe plowing.

Boring is not brought within the chapter by analogy. It is one of the named activities, alongside augering and tunnelling, and the definition contemplates cable and pipe plowing as well — the other technique a fiber crew uses. §802 likewise defines a facility to include an underground or submerged conductor, pipe or structure used to provide electric or communications service, so both the plant being installed and the plant most likely to be struck are within the Act.

The ticket has a short, precise life. An excavation ticket is valid for 12 business days after the day on which it is transmitted by the approved notification center to a member; on the thirteenth day it expires and an update, remark, or new ticket is required. Twelve business days is tighter than several states in this series, and on a route sequenced around permits and traffic control the expiry arrives sooner than crews expect.

An operator that does not supply the information shifts the burden. Under §811(b), if the information required from facility owners or operators under §803 is not provided in accordance with its terms, any person damaging or injuring that owner’s or operator’s underground facilities shall not be liable except on proof of negligence. Read precisely: this is not immunity and it is not a merits presumption in your favor. It changes what the operator must establish — from the fact that its facility was damaged to the proposition that you were negligent in damaging it. On a claim where the locate was never furnished properly, that is the difference between defending causation and defending conduct.

And having the marks does not excuse the work. §811(a) provides that obtaining the information required by the chapter does not excuse any person making an excavation from doing so in a careful and prudent manner, nor excuse them from liability for damage or injury resulting from the excavation. The ticket is a condition of proceeding, not a transfer of the consequences.

Two positions in one small state

The contractors who reach us in Delaware are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. Delaware anticipated the answer the drafting was meant to produce, and the prime has not caught up. Because §2704(a) voids the covenant even where it is crystal clear and unambiguous, a prime that had counsel write an airtight indemnity has bought nothing on the contract side — and it responds by leaning on the certificate, which subsection (b) leaves available. The document is being asked to carry a transfer the statute took away from the paragraph beside it, and re-issuing it does not change what it can lawfully do.

Because protection turns on the awarding authority, a Delaware program is built to the exception and relieved by the rule.

Pollution liability is untouched by either statute. §2704 allocates contractual responsibility and chapter 8 governs facility damage; drilling fluid surfacing into a tidal wetland or a drainage ditch is outside both, the general liability form excludes it, and in a low, water-crossed state that exposure is carried by the placement alone. Umbrella liability is sized against the Department of Transportation segments, where the contract stands unmodified. General liability is read with the endorsement, since subsection (b) keeps insurance available as the surviving instrument.

Three checks run on a Delaware file. Which contracts were awarded under Title 17 or Chapter 69 of Title 29, because those are the ones §2704 does not reach. Whether ticket management tracks a 12-business-day life rather than a longer one carried over from another state. And whether the operator’s §803 information was actually furnished, since §811(b) turns on it.

A Delaware note for contract review: licensing here runs through the Delaware Board of Electrical Examiners (Division of Professional Regulation), and it has no bearing on which side of the Department of Transportation proviso a contract falls. The awarding authority decides that.

6 Del. C. §2704 is unusually strong for a boring subcontractor and unusually silent about everything that is not the boring. That silence is filled in on our Delaware fiber contractor insurance page.

Why Fiber Optic Guard Insurance

What we actually do on a Delaware file: sort contracts by awarding authority, because §2704 is either the strongest protection in this series or entirely absent depending on that one fact; treat the endorsement as the surviving instrument given subsection (b); and set the pollution line against a release exposure neither statute limits. If any segment is under a Department of Transportation contract, send that agreement — it is the one with nothing behind it.

Frequently asked questions about Delaware directional drilling insurance