Directional drilling by state
Directional Drilling Insurance in Indiana
Indiana voids less of your indemnity than almost any state and lets an operator ask a court for three times its actual damage — the narrowest contract protection paired with the sharpest loss exposure.
Indiana is an unusual combination for a boring contractor. Its anti-indemnity statute is among the narrowest in the country — it voids a clause only where the loss arises from the promisee’s sole negligence or willful misconduct, and a 2019 amendment then cut three further routes out of what “sole” means. Its damage prevention statute runs the other way entirely, letting an operator sue for actual damage, the costs of the action, a reasonable attorney’s fee, and punitive damages a court may set at up to three times the actual damage.
The practical shape of that is a contract you largely keep as written, standing in front of a loss the statute makes unusually expensive. That is close to the inverse of the Texas position and nothing like Florida’s. IC 26-2-5 leaves the promise standing and IC 8-1-26 makes the loss behind it larger. That loss is described on the Directional Drilling Insurance pillar and the pollution liability page.
Boring in Indiana? A treble-damages exposure is a limits question, and it is better answered before the bore than after.
Get a Free QuoteIC 26-2-5 voids less than most contractors assume
The operative provision is IC 26-2-5-1(b). It voids provisions contained in, collateral to, or affecting any construction or design contract — except those pertaining to highway contracts — that purport to indemnify the promisee against liability for death or bodily injury to persons, injury to property, design defects, or any other loss arising under those, where that liability arises from the sole negligence or willful misconduct of the promisee. The word doing the work is “sole.” A clause that shifts liability for shared fault is untouched.
The 2019 amendment then narrowed the void again by defining what sole negligence is not: it “does not include vicarious liability, imputed negligence, or assumption of a nondelegable duty.” Each of those is a route by which a promisee might have been held solely negligent in form while the underlying fault sat elsewhere, and each is now expressly outside the statute. The effect is to make the void harder to reach, not easier.
On scope, Indiana sits at the opposite end from Florida. IC 26-2-5-1(a) defines a construction or design contract inclusively and enumerates no subject matter at all, and subsection (b) reaches any such contract. Where Florida’s statute is confined to a building, structure, appurtenance, or appliance — a closed list a court used to hold it inapplicable to utility-line work — Indiana draws no such boundary, and its express highway carve-out implies the chapter was expected to reach horizontal infrastructure in the first place. We found no Indiana decision narrowing the chapter the way Florida’s courts narrowed theirs, while noting that the absence of a case proves less than a case would.
Three further carve-outs sit in the chapter. IC 26-2-5-2 disapplies it where liability insurance normally available in the United States at standard rates cannot be obtained for the facility because it constitutes a dangerous instrumentality. IC 26-2-5-3 limits it to contracts entered into after June 30, 1975. And IC 26-2-5-4, effective for contracts entered on or after July 1, 2019, voids duty-to-defend and broad indemnity provisions in professional services contracts with design professionals, architects, landscape architects, surveyors, engineers, geologists, and geotechnical and environmental consultants — a list that reaches directly into the project team on a river crossing or a difficult bore. Nothing in the chapter addresses additional-insured status, so that requirement survives whatever the contract says.
IC 8-1-26 makes a strike expensive in a way most states do not
The damage prevention chapter is where Indiana becomes severe. Under IC 8-1-26-22(a), an operator that suffers a pecuniary loss as a result of a violation of the chapter may bring a civil action against the person who caused it for an amount equal to the operator’s actual damage to the facility, the costs of the action, and a reasonable attorney’s fee. Fee-shifting alone changes the economics of a disputed strike claim.
Then subsection (b) adds the multiplier. At the court’s discretion, a court having jurisdiction may award punitive damages up to three times the operator’s actual damage. That is a discretionary treble exposure sitting on top of fee-shifting, and punitive damages are commonly restricted or excluded under liability policies — so the part of the exposure the statute makes largest is often the part a policy is least able to answer. Subsection (d) also allows an operator to seek an injunction stopping work in an area containing its facilities until the excavator complies with the chapter, which is a schedule risk rather than a claim.
The defense is broad in form. IC 8-1-26-22(c) provides that it is a defense to an action brought under the chapter if an operator fails to comply with the duties imposed under the chapter. That is not confined to marking. Other states legislate this question much more tightly, and in opposite directions — Florida makes an operator’s failure to mark an infraction but expressly not the act of marking incorrectly, while Kansas gives the excavator a flat immunity where damage was caused by the operator’s failure to mark correctly. Indiana instead makes the operator’s compliance across the whole process relevant, which rewards a crew that documents what the operator did and did not do.
White lining is a conditional duty, and rural fiber routes are where it bites. IC 8-1-26-16(a) requires notice to the association before excavation, and requires white lining at the site only if the excavator is unable to give the association the physical location by a street address, a legal description, or a highway location using mile markers or cross streets. A bore along an open route between towns is precisely the case with no street address to give. The same subsection requires the notice to be received at least two full working days, and not more than ten calendar days, before work begins.
A contract that survives, in front of a loss that multiplies
The program has to be built for a contract that mostly survives and a loss that can multiply. Because IC 26-2-5 only voids at sole negligence and reaches no additional-insured requirement, the indemnity and certificate obligations a prime writes are largely the obligations you carry, so they have to be read as real rather than assumed to be trimmed. Because IC 8-1-26-22 reaches fees and a discretionary treble, umbrella limits are being sized against a number that is a multiple of the physical damage, not the physical damage itself.
Pollution liability remains the signature line for the same reason it is everywhere — the strike and the frac-out are environmental losses the general liability form excludes — and nothing in either Indiana statute alters that. What Indiana changes is the size of the number sitting behind it, and the fact that the contract will not be cut back to meet you.
IC 26-2-5 leaves the contract largely intact and IC 8-1-26 makes the loss behind it larger — an argument about one bore. our Indiana fiber contractor insurance page takes the account as a whole.
Why Fiber Optic Guard Insurance
Indiana work turns on three things for us: treating the indemnity as an obligation IC 26-2-5 will mostly leave standing, setting limits against a figure a court may treble rather than against the repair cost, and placing the pollution and equipment lines against the same multiplied number. If your project has a geotechnical or environmental consultant in the chain, send that contract too — IC 26-2-5-4 changed where its defense cost can be placed.
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Frequently asked questions about Indiana directional drilling insurance
How much of my indemnity does Indiana actually void?
Less than most contractors expect, and the 2019 amendment narrowed it further. IC 26-2-5-1(b) voids provisions in a construction or design contract, except those pertaining to highway contracts, that purport to indemnify the promisee against liability for death or bodily injury, injury to property, design defects, or other loss arising from those — but only where that liability arises from the sole negligence or willful misconduct of the promisee. Anything short of sole is outside the statute. The same subsection then adds that sole negligence “does not include vicarious liability, imputed negligence, or assumption of a nondelegable duty,” which removes three routes a contractor might otherwise have argued into the void. Compare Texas, which voids indemnity for the indemnitee’s negligence or fault generally: Indiana leaves far more of the clause standing.
Does IC 26-2-5 apply to underground utility work?
On its face, yes. Unlike Florida, whose statute is confined to a closed list of a building, structure, appurtenance, or appliance, IC 26-2-5-1(a) contains no subject-matter enumeration at all — it defines a construction or design contract inclusively, and the operative provision in subsection (b) reaches “any construction or design contract.” The express carve-out for highway contracts is itself a signal, because a carve-out is unnecessary for work a statute never covered; the legislature evidently expected the chapter to reach horizontal infrastructure and removed one category from it. We found no Indiana authority narrowing the chapter’s scope in the way Florida’s courts narrowed §725.06, though the absence of a case is weaker evidence than the presence of one.
Does Indiana void additional-insured requirements?
No. IC 26-2-5 regulates the indemnity promise and contains no additional-insured provision, so the statute does not reach the insurance mechanism at all. That leaves an Indiana boring subcontractor in a particular position: a narrow indemnity void that only bites at sole negligence, and an additional-insured requirement sitting on top of it entirely untouched. Texas is the contrast — its §151.104 carries the void across to additional-insured requirements — and Missouri goes the other way again by expressly permitting a promise to name another party as an additional insured. Three neighboring approaches, three different answers on the certificate.
What else does chapter 5 carve out?
Three things beyond the highway exception, and one of them is easy to miss. IC 26-2-5-2 disapplies the chapter entirely where liability insurance normally available in the United States at standard rates cannot be obtained for the facility being constructed or designed because it constitutes a dangerous instrumentality. IC 26-2-5-3 limits the chapter to contracts entered into after June 30, 1975. And IC 26-2-5-4, added in 2019 and applying to contracts entered into on or after July 1, 2019, is a separate rule for professional services contracts with design professionals, architects, landscape architects, surveyors, engineers, geologists, or geotechnical and environmental consultants: it voids provisions requiring the professional to defend the promisee against a professional liability claim, and voids indemnity beyond liability for damages arising out of third party claims to the extent caused by the professional’s willful misconduct or negligence.
Why does the geotechnical consultant provision matter on a bore?
Because a directional drilling project frequently has one on the team. IC 26-2-5-4 names geotechnical and environmental consultants alongside engineers and surveyors, and a bore across a river crossing or through uncertain ground is exactly the scope that brings a geotechnical consultant into the contract chain. If your project engages one, the duty-to-defend language that would ordinarily be pushed onto them is void for contracts entered on or after July 1, 2019 — which changes where that defense cost actually lands, and therefore what the project’s insurance has to be structured to absorb.
What can an operator recover from me if my bore damages a line in Indiana?
More than in most states, and this is the provision to plan limits around. Under IC 8-1-26-22(a), an operator that suffers a pecuniary loss as a result of a violation of the chapter may bring a civil action for an amount equal to its actual damage to the facility, the costs of the action, and a reasonable attorney’s fee. Subsection (b) then provides that at the court’s discretion a court having jurisdiction may award punitive damages up to three times the operator’s actual damage. Fee-shifting plus a treble punitive exposure is a materially different risk profile from a state that caps recovery or leaves it to ordinary tort measure, and punitive awards are frequently restricted or excluded under a liability policy — which is precisely why the exposure belongs in the program conversation rather than the claims one.
Is a bad locate a defense in Indiana?
There is a general one, and it is broader in form than the mismark rules other states write. IC 8-1-26-22(c) provides that it is a defense to an action brought under the chapter if an operator fails to comply with the duties imposed under the chapter. That is not limited to marking; it reaches any duty the chapter puts on the operator. Other states legislate this much more narrowly — Florida makes an operator’s failure to mark an infraction but expressly not the act of marking incorrectly, and Kansas grants the excavator a flat immunity where the operator failed to mark correctly. Indiana instead gives you a general non-compliance defense, which makes the operator’s own conduct through the whole notification process relevant, and makes your documentation of it valuable.
When does Indiana require white lining before a bore?
Only in a defined circumstance, and it is one that comes up on rural fiber routes. IC 8-1-26-16(a) requires a person responsible for an excavation to serve notice on the association of the intent to excavate, and to perform white lining at the site if that person is unable to provide the association the physical location of the proposed excavation by one of three means: a street address, a legal description of the location, or a highway location using highway mile markers or cross streets. A bore along an open route without a street address is exactly the case that triggers it. The same subsection requires the notice to be received at least two full working days, but not more than ten calendar days, before work commences.
What happens when an Indiana prime rejects the certificate I already have?
The contractors who call us are usually calling because a prime rejected the certificate they already had, on limits or on the coverage form, and their current agent could not fix it. In Indiana the underlying problem is usually that nothing in the statute is doing the work the contractor assumed it was doing. IC 26-2-5 voids indemnity only at sole negligence and says nothing at all about additional-insured status, so the obligation on the certificate is largely whatever the contract wrote — and behind it sits an IC 8-1-26 exposure that can reach three times actual damage plus fees. Because fiber and utility contracting is what we write, we place with markets that many generalist agents do not have access to, which usually means rebuilding the program to the obligation rather than asking the prime to relax it.
Insure your Indiana bores against a number the statute can multiply
Send the prime contract and the bore profile. In Indiana the indemnity mostly stands and the damage claim can reach three times the repair, so both belong in the same conversation.
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