Directional Drilling Insurance in Tennessee

There is a section of Tennessee’s damage prevention act headed liability per se for damage to underground utilities. A contractor who read only the heading would conclude the state had settled the question against him. The sentence underneath does the opposite, and the difference is worth more to a Tennessee crew than anything else in the chapter.

What follows is the Underground Utility Damage Prevention Act, Tenn. Code Ann. title 65, chapter 31, as published by the Tennessee Public Utility Commission and as it bears on a fiber bore. A hundred feet from the pavement, and a response counted in working days, bound the work rather than describe it. The work is on the Directional Drilling Insurance pillar and the pollution liability page.

The heading promises liability, the sentence declines to impose it

Section 65-31-120 is captioned Excavation; liability per se for damage to underground utilities; reporting requirements. Its operative text reads, in full:

Engaging in the activities described in the definition of “excavate” or “excavation” in § 65-31-102 does not remove or impose liability per se for damage to underground utilities.

Read the verbs. The section does not create liability per se and it does not take it away — it declines to do either, and it does so by reference to the fact of excavating. The consequence is that the ordinary law of fault is left standing. Boring near plant is not, of itself, the thing that decides who pays; someone still has to establish what was done and whether it fell below the standard the rest of the chapter sets out.

For a directional drilling contractor that is a materially better position than a strict-liability rule, and it is one that a reader working from the section list alone would never find. It also means the compliance record does real work in Tennessee: where liability turns on conduct rather than on outcome, the ticket, the marks and the field notes are the evidence that decides it.

A hundred feet, measured from the pavement

Section 65-31-104(a) fixes what the act reaches. Except as provided in §65-31-109, no person may excavate in a street, highway, public space, a private easement of an operator, or within one hundred feet (100′) of the edge of the pavement of a street or highway, or demolish a building, without giving the notice required by §65-31-106.

The measurement is the thing to notice. The trigger is distance from the pavement, not distance from a utility. A crew boring a rural drop two hundred feet off a county road and nowhere near known plant is outside the trigger on that limb; a crew working eighty feet off the pavement in an empty field is inside it, whether or not anything is buried there. That is an easier test to apply in the field than a proximity-to-plant rule, and a harder one to talk your way out of afterwards.

Section 65-31-104(b) carries a narrow relief for farmland: a general DIG certificate is issued for agricultural land as defined in §67-5-1004 that lies outside a street, highway, public space or operator easement but within a hundred feet of the pavement edge when no utilities are located within that area. It remains valid until title to the land transfers or until a utility line is located within the area — so it is a standing certificate that ends the moment somebody puts plant in.

Section 65-31-102 puts the method beyond doubt. To excavate means an operation for the movement, placement or removal of earth, rock or other materials by mechanized equipment, explosives or hand digging, and includes augering, backfilling, blasting, boring, digging, ditching, drilling, grading, pile-driving, plowing-in, pulling-in, ripping, scraping, sub-soiling, trenching, or tunneling.

Three working days, ten at the outside, and a renewal you serve early

Section 65-31-106(a)(1) sets the clock. Notice of intent to excavate must be served at least three working days before the actual date, but not more than ten full working days before it, unless a different period has been agreed in writing between the person responsible for the excavation and the operator or its designated representative.

Then the provision that costs long jobs money. Should fifteen calendar days from the actual date specified to start expire without the excavation being completed, the person responsible shall serve an additional notice at least three working days prior to the expiration of time on the fifteenth calendar day.

Work through the arithmetic, because it does not behave like a normal renewal. The obligation is not to re-notice when the ticket runs out; it is to re-notice three working days before it runs out. A superintendent who diaries the fifteenth day and acts on it has already missed the deadline by three working days. On a fiber build that runs weeks in a single alignment, that calculation repeats, and each repetition is an opportunity to lapse.

Section 65-31-106(b) sets out what the notice must contain — the filing party and, if different, the person responsible, the starting date, the anticipated duration, the type of operation, the specific location, and whether explosives are anticipated — and requires the responsible person to designate the proposed area by marking it consistently with the standards adopted under §65-31-108(a). Section 65-31-102(4) defines a calendar day for the chapter as a twenty-four hour period beginning with the date and time that a notification to excavate is to begin, including Monday through Sunday and all holidays, while §65-31-102(25) defines a working day as every day except Saturday, Sunday and national and legal state holidays.

The operator list lives at the register of deeds — and newer plant has to be findable

Section 65-31-105 puts Tennessee’s operator registry somewhere most states do not. Each operator not participating in a one-call service, including as to facilities abandoned in place but not yet physically removed, must file a notice with the register of deeds of the county stating that it has underground utilities there, together with its representative’s contact details. Changes go on file within thirty working days, and under subsection (d) the register must furnish a requesting party, within one working day, a list of all operators who have filed.

For a crew working a county without full one-call coverage, that is where the counterparty list actually comes from, and §65-31-106(a)(2) makes the point operational: where the area is not served by the one-call service, notice must be served on each operator that has filed under §65-31-105 for that county.

Subsection (f) is the one that matters most to fiber specifically. All underground utilities owned by an operator that are installed on or after January 1, 2017 shall be installed in a manner that will make those underground utilities locatable using a generally accepted electronic locating method. Non-metallic duct with no tracer is the classic unlocatable asset, and it is very often somebody else’s fiber. The requirement is prospective, so the risk it addresses sits in plant older than that date — which is precisely the plant a locator is least likely to find and a bore most likely to meet.

Ten thousand, fifteen on gross negligence — or a classroom instead

Section 65-31-112(a) sets the civil exposure, and it is administered by an executive committee of the enforcement board rather than by a court. The violator pays a civil penalty in an amount set by the executive committee not to exceed ten thousand dollars ($10,000) per incident, and may in addition be required to complete a course of training. Where the violation was the result of gross negligence or willful or wanton misconduct, the committee shall require training and a penalty not to exceed fifteen thousand dollars ($15,000) per incident.

Two features of that scheme are unusual enough to plan around. First, subsection (a)(4) permits board investigators, on issuance of a civil penalty, to make offers of settlement which may include training concerning compliance in lieu of payment. A first incident can therefore resolve into a classroom rather than an invoice — but under subsection (d) the person required to complete training pays for the training.

Second, operators are inside the scheme, not merely beneficiaries of it: subsection (a)(3) makes operators who fail to join the one-call service and use the notification center as required by §65-31-107 subject to the civil penalties for violations of this chapter.

Subsection (c) confirms that, except as provided in subsection (e), the section does not limit any person’s right to pursue any additional civil remedy otherwise allowed by law — so the administrative penalty sits alongside the damage claim rather than replacing it.

Who cannot be fined

Section 65-31-112(b) creates an asymmetry that is worth understanding before a dispute with a public body. Monetary civil penalties shall not be levied against any department of this state; where a state department is found non-compliant, the executive committee may submit a notice of non-compliance to the department head with a request for an action plan.

And under (b)(2), monetary civil penalties shall not be levied against a county, city, town, utility district or other political subdivision unless the executive committee finds a pattern of willful noncompliance. Section 65-31-102(24) defines willful noncompliance as the intentional refusal or failure to perform or comply with a duty created by the chapter or its rules.

The practical reading for a contractor is not that public operators are immune from liability — subsection (c) preserves ordinary civil remedies — but that the enforcement lever available against a municipal utility district that repeatedly fails to mark is materially weaker than the one pointed at your crew. That is a reason to build the record yourself rather than to rely on the board building it for you.

What a Tennessee file is actually made of

The contractors who reach us in Tennessee are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. What decides money here is conduct, not contact. Because §65-31-120 declines to impose liability per se, a Tennessee strike is argued on what the crew did and what the record shows, which makes the ticket, the renewal notices and the field marking the operative documents rather than background paper.

The renewal rule is where we see programs fail. A crew that serves the original notice correctly and then works past the fifteenth calendar day without having re-noticed three working days earlier is out of compliance on a job that is otherwise going well, and it is out of compliance in a way that becomes visible only after something is hit.

Pollution liability sits outside chapter 31 altogether. The chapter governs utilities and the penalties for damaging them; drilling fluid surfacing into a creek, a karst opening or a storm system is an environmental loss the general liability form excludes, and the absence of liability per se does nothing for it. Contractors equipment matters because a rig committed to an alignment whose ticket has lapsed is a rig that cannot lawfully proceed. General liability is specified against the subcontract, and here the subcontract is unusually exposed, for the reason set out next.

A hundred feet measured from the pavement, and an operator list kept at the register of deeds, are field mechanics. Licensing, the Tennessee markets and the aerial and splice crews are on our Tennessee fiber contractor insurance page.

A second axis this page leaves alone

Most state pages on this site run two axes. The first is the damage prevention act, which is above. The second is the anti-indemnity statute — what state law does to the indemnity article a prime puts in front of you. This page does not run it, and the reason is specific rather than general.

Tennessee’s codified statutes are published under an arrangement we have not been able to read from. The damage prevention act is on this page because a state agency publishes it in full, independently. The title that would carry an anti-indemnity provision is not available to us on the same terms, and we have not read it.

So we are not going to tell you what Tennessee law does to your indemnity clause. Not because we believe it does nothing — we have no basis for that either — but because the honest description of our position is that we have not seen the text. A page that guessed here would be guessing about the single provision most likely to decide who funds a claim.

What that leaves is still actionable. Treat the indemnity article, the additional insured wording and the insurance exhibit in your Tennessee subcontract as fully operative and negotiate them on that basis. If a prime has sent a broad clause, send it here before signature and we will read it as written rather than assume a statute trims it.

Why Fiber Optic Guard Insurance

What we actually do on a Tennessee file: diary the renewal against three working days before the fifteenth calendar day, since §65-31-106(a)(1) puts the deadline ahead of the lapse rather than at it; check whether the alignment sits within a hundred feet of pavement edge, because that is the trigger §65-31-104(a) actually uses; pull the register of deeds list where a county is not fully one-call served, as §65-31-106(a)(2) requires notice on each filed operator; treat pre-2017 plant as the unlocatable risk, since §65-31-105(f) only reaches forward; build the conduct record that §65-31-120 makes decisive; and read the subcontract as fully operative, because we have not read a Tennessee statute that narrows it.

Frequently asked questions about Tennessee directional drilling insurance