Directional Drilling Insurance in Ohio

Two words decide whether Ohio’s anti-indemnity statute stands behind your bore, and they are “highway, road.” R.C. 2305.31 reaches a closed list of works, and closed lists are where utility contractors lose this argument in other states. Ohio’s list happens to name the two things a fiber bore is most often built along, which puts a boring subcontractor inside a statute that a contractor doing identical work elsewhere may sit outside.

The damage prevention side is unusual in a different way. Most states answer a bad locate with a penalty schedule. Ohio answers it with an allocation: a contractor who locates correctly is not responsible to the facility owner for lines encountered other than as marked, and on public work is entitled to be paid for the delay. This page works through both. §2305.31 settles the contract and §3781.25 the notice. The bore that puts both in play is on the Directional Drilling Insurance pillar and the pollution liability page.

Why the statute reaches your bore here and may not next door

R.C. 2305.31 voids a covenant, promise, agreement, or understanding in, in connection with, or collateral to a construction contract under which the promisee has hired the promisor to perform work, where it purports to indemnify the promisee, its independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property initiated or proximately caused by or resulting from the negligence of the promisee or those same parties. There is no sole-negligence threshold and no monetary-limitation mechanism. The provision took effect on November 19, 1975 and has not been amended since.

The operative question for a fiber crew is not what the statute voids but whether it applies at all. By its terms it governs a contract relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected therewith. Read that list against the one a boring subcontractor loses under in Florida, which runs “building, structure, appurtenance, or appliance” and stops. The two lists are otherwise near-identical in construction. Ohio adds highway and road, which are precisely the categories a linear utility bore is built within, and preserves the express reference to excavating.

There is judicial support for applying the section in a utility contracting setting. In Moore v. Dayton Power & Light Co., 650 N.E.2d 127 (Ohio Ct. App. 1994), the court considered an indemnity clause between a utility and its contractor and held it void under 2305.31 except as to a portion requiring indemnity for costs and expenses, which fell outside the section because it did not purport to indemnify against liability for damages. Being precise about what that supports: the dispute was about the costs-and-expenses line rather than about subject-matter scope, so Moore is authority that 2305.31 operates on utility contracting relationships, not a holding construing the statutory list. Taken with the express inclusion of highway and road, it is a firm answer rather than an assumed one.

On the certificate, Ohio separates the promise from the policy. The section’s own savings clause permits any person to purchase insurance from an insurance company authorized to do business in Ohio for his own protection, or to purchase a construction bond. That language is narrower than the broad insurance savings clauses some states use, and it is aimed at first-party protection rather than at coverage procured for somebody else. The additional-insured question was answered directly in Buckeye Union Insurance Co. v. Zavarella Brothers Construction Co., where the court held that a subcontractor’s agreement to name its general contractor as an additional insured on the subcontractor’s own policy does not violate 2305.31. The boundary is the familiar one: the arrangement is sound to the extent it answers for liability arising out of your work, and cannot be used to hand the promisee the indemnity for its own negligence that the statute voids.

A damage prevention regime that allocates rather than fines

Ohio splits underground damage prevention between R.C. 153.64, which governs public improvement work, and R.C. 3781.25 to 3781.33 for other work. Every state has a one-call law and the notice mechanics are broadly similar, so the notice period is not the story. What Ohio does with responsibility is.

A compliant contractor is not responsible for a bad mark. Under §153.64, a public authority that complies with division (B) and a contractor or its subcontractor that complies with division (C) shall not be responsible to the owner of the underground utility facility if underground utility lines are encountered not as marked in accordance with division (C) by that owner, unless the contractor or subcontractor has actual notice of the facility. This is an allocation written into the statute rather than a defense assembled after the fact, and the conditional is the whole of it: the shield is earned by your own compliance. The section also preserves, except as it provides, the parties’ rights against the facility owner for failure to mark or for erroneous marking.

A mismark on public work is a claim you make, not one you defend. Where facilities are encountered that were not shown in the plans and specifications as they would have been had a protection service been contacted, §153.64 entitles the contractor, upon notification to the public authority, to an increase in the contract price for itself or its subcontractor for additional work or additional time required, and to an extension of the completion date for the period of any delays. Disputes may be commenced under the construction contract’s own terms, or under the arbitration procedures of R.C. Chapter 2711 if the contract provides no final resolution. The section also bars a public authority from using a public improvement contract to change the responsibilities between the authority and facility owners for damage.

Regulatory enforcement and civil liability are separate tracks. Enforcement runs through the Public Utilities Commission under R.C. Chapter 4913, with the Underground Technical Committee providing subject-matter expertise in Commission investigations and reviewing contested Notices of Determination. Neither the Commission nor the Committee determines the civil liability of any person. A contractor can therefore be cleared regulatorily and still face the facility owner’s repair claim, or the reverse. The two proceedings ask different questions, and a program built only against the regulatory one is built against the smaller exposure.

Favorable ground, and where the demand relocates

The contractors who reach us in Ohio are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. Here the cause is a push-back effect. Because §153.64 takes the mismark risk off a contractor who locates correctly, and because 2305.31 voids the indemnity a prime would otherwise use to reclaim it, the risk a prime cannot place by statute it tries to place by insurance requirement instead. The certificate demand grows to fill the space the statute cleared. Recognizing that is what turns the conversation from re-issuing a document into reading what the contract is actually trying to accomplish.

Put the two axes together and Ohio is comparatively favorable ground — a statute that reaches your contract and voids the broadest transfers, and a damage regime that allocates a bad locate away from a compliant crew. The exposures that remain are the ones neither statute touches.

Pollution liability answers the loss the allocation does not. §153.64 decides responsibility for a mismarked line and 2305.31 decides who may be indemnified, but a drilling fluid release is an environmental claim, and the general liability form is drafted to exclude it. Contractors equipment earns more attention here than in most states, because the §153.64 allocation is about responsibility to the facility owner and does not put your own damaged tooling back in the ground. And general liability is read together with the additional-insured requirement, since that requirement is where a prime’s transfer relocates once the indemnity clause fails.

One structural point that changes the shape of an Ohio program. This is a monopolistic workers’ compensation state: work injury coverage is written through the state fund and not by a private carrier, so the liability program is placed around it rather than bundled with it. Employer’s liability, which travels with a private workers’ compensation policy elsewhere, has to be addressed deliberately here rather than assumed — and it matters more than usual on bore crews, where the employee-injury indemnity a prime asks for is the transfer most likely to survive.

§153.64 takes a mismark off a compliant crew and can turn it into a contract-price claim, which is a protection earned bore by bore. What an Ohio program carries around it is on our Ohio fiber contractor insurance page.

Why Fiber Optic Guard Insurance

What we actually do on an Ohio file: read the additional-insured requirement as the place a prime’s transfer relocates once 2305.31 voids the indemnity; check that the locate documentation is built to the standard §153.64 conditions its shield on, because the shield is the single most valuable thing an Ohio bore crew owns; and place the liability program deliberately around state-fund coverage rather than assuming an employer’s liability line that is not attached to a private policy here. If your prime contract already specifies additional-insured status, send it — it is doing the work the statute took away.

Frequently asked questions about Ohio directional drilling insurance