Directional Drilling Insurance in Washington

Washington decides two questions other states leave to argument, and it decides them by looking at documents rather than at conduct. Whether a concurrent-negligence indemnity is enforceable turns on whether the agreement specifically and expressly provides for it. Whether a waiver of your industrial insurance immunity is effective turns additionally on whether the waiver was mutually negotiated — a question about how the deal was struck, not what it says.

On the damage prevention side Washington does something equally direct. Failing to call in a locate does not merely expose you to a claim for treble damages; the statute deems the resulting damage willful and malicious, which removes the argument about intent altogether. This page works through both. RCW 4.24.115 reads the bargaining and RCW 19.122 the ticket. The hole they are both about sits on the Directional Drilling Insurance pillar and the pollution liability page.

An indemnity rule that reads the drafting and the bargaining

RCW 4.24.115 applies to a covenant, promise, agreement, or understanding in, in connection with, or collateral to a contract relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith — and also to contracts for architectural, landscape architectural, engineering, or land surveying services, and to motor carrier transportation contracts. Scope is not a live question for a bore here: excavation is a named object, and the residual clause covers any other improvement attached to real estate.

The rule itself has two limbs and the second is where Washington work actually lands. Under subsection (1)(a), a covenant purporting to indemnify against liability for damages caused by or resulting from the sole negligence of the indemnitee, its agents or employees, is against public policy and void and unenforceable. Under subsection (1)(b), where the damages are caused by the concurrent negligence of the indemnitee and the indemnitor, the indemnity is valid and enforceable only to the extent of the indemnitor’s negligence and only if the agreement specifically and expressly provides therefor. The section covers covenants purporting to indemnify “including the duty and cost to defend,” so the defense obligation travels with the rule rather than escaping it. Subsection (1)(b) applies to agreements entered into after June 11, 1986.

That express-provision condition is the first thing worth reading in a Washington subcontract. Proportional transfer is not supplied by the statute as a default; it has to be written. A sophisticated prime’s form will usually satisfy the condition and produce an enforceable obligation bounded by your share of fault, which is a real obligation to underwrite. A loose flow-down in a purchase order may not satisfy it. The difference is in the words, and it is determined before any loss occurs.

The second condition has no counterpart anywhere else in this series. The same subsection provides that such an agreement may waive the indemnitor’s immunity under industrial insurance, Title 51 RCW, only if the agreement specifically and expressly provides therefor and the waiver was mutually negotiated by the parties. Every other statute discussed on this site asks what a clause says. Washington additionally asks how the parties arrived at it. A Title 51 waiver presented as non-negotiable boilerplate and signed without discussion is vulnerable on the mutual-negotiation ground even where the drafting is impeccable — which means the correspondence around the subcontract is part of the record that decides the question.

On the certificate, note what the section does not do. RCW 4.24.115 regulates indemnity covenants and the duty and cost to defend. It does not contain an additional-insured provision, and it does not reach the insurance-procurement mechanism the way statutes in some states do. So a Washington prime may require additional-insured status, and the statute has nothing to say about that requirement directly. The control the legislature did impose sits on the Title 51 waiver instead, which is the transfer with the sharpest consequences for a bore crew.

A dig law that deems rather than presumes

Washington’s underground utilities chapter is RCW 19.122. Every state has a one-call law and the notice mechanics are broadly similar, so the notice period is not the story. What Washington does with the characterization of your conduct is.

Treble damages attach automatically when the call was not made. RCW 19.122.070(2) makes an excavator who willfully or maliciously damages a marked underground facility liable for treble the costs incurred in repairing or relocating the facility. It then provides that in those cases in which an excavator fails to notify known facility operators or a one-number locator service, any damage to the underground facility is deemed willful and malicious and is subject to treble damages for repair or relocation costs. A deeming provision is stronger than a presumption. There is nothing to rebut and no showing of care that answers it — the failure to notify supplies the characterization by operation of the statute. On fiber, and more so on pipeline infrastructure, trebled repair and relocation costs are the largest single number a boring contractor is likely to face.

Civil penalties escalate on a rolling window. Under RCW 19.122.070(1), any person who violates a provision of the chapter not amounting to a violation of RCW 19.122.055 is subject to a civil penalty of not more than $1,000 for an initial violation, and not more than $5,000 for each subsequent violation within a three-year period. Penalties recovered are deposited in the damage prevention account created in RCW 19.122.160. The three-year window is worth tracking deliberately, because a second event is priced differently from a first.

None of this replaces the owner’s ordinary claim. RCW 19.122.070(3) states that the chapter does not affect any civil remedies for personal injury or for property damage, including damage to underground facilities, nor does it create any new civil remedies for such damage. The penalty, the treble damages provision, and the facility owner’s claim are three separate things, and civil penalties are generally not what a liability policy responds to.

Decided by what the paperwork already says

The contractors who reach us in Washington are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. The cause here is that the contested transfer is often not an insurance term at all. Because RCW 4.24.115(1)(b) permits a Title 51 immunity waiver only where the agreement specifically and expressly provides for it and the waiver was mutually negotiated, a prime pushing that waiver through a standard form is asking for something the statute conditions on a bargaining process, and no endorsement satisfies it. A certificate cannot cure a defect in how the underlying agreement was reached, which is why the document being reissued was never the thing in dispute.

Put the two axes together and Washington is a state where the decisive facts are recorded early: in the words of the subcontract, in the correspondence around it, and in the locate ticket. The program is decided by what the paperwork already says.

Pollution liability stands apart from the trebling. RCW 19.122.070 multiplies repair and relocation cost; it does not reach a release into soil or water, which the general liability form excludes and which is the loss most likely to exceed a bore contract in value. Umbrella liability is sized with the trebling provision in view, since a repair and relocation cost multiplied by three is a different limit question from the same cost standing alone. And general liability is read together with the indemnity clause, because whether that clause is enforceable at all depends on drafting the statute specifies rather than on a general fairness test.

Three readings decide a Washington file. We read the indemnity paragraph for whether it satisfies the express-provision condition, since that determines whether there is an obligation to underwrite. We treat any Title 51 waiver as a question about the negotiation record and not only about the signature. And we date the subcontract against June 11, 1986, because subsection (1)(b) applies only to agreements entered into after it.

One structural point that changes the shape of a Washington program. This is a monopolistic workers’ compensation state: work injury coverage is written through the state fund rather than by a private carrier, so the liability program is placed around it. That is also why the Title 51 immunity provision in RCW 4.24.115 carries more weight here than an equivalent clause would elsewhere — the immunity it addresses is the one attached to the state-fund system your crews are covered under, and employer’s liability does not arrive bundled with a private policy the way it does in most states.

RCW 4.24.115 reads the drafting and the bargaining behind one clause, and RCW 19.122.070 reads one missing locate. An account is larger than both, and the rest of it is on our Washington fiber contractor insurance page.

Why Fiber Optic Guard Insurance

What we actually do on a Washington file: read the indemnity clause against the express-provision condition in 4.24.115(1)(b), because a clause that fails it and a clause that satisfies it produce very different programs; treat a Title 51 waiver as a negotiation question and flag it before signature; and size limits with the trebling in 19.122.070(2) in view rather than against a generic contractor benchmark. If your subcontract carries a waiver of industrial insurance immunity, send it early — in Washington that clause is the one with the sharpest consequences and the most specific statutory conditions.

Frequently asked questions about Washington directional drilling insurance