Directional drilling by state
Directional Drilling Insurance in Wisconsin
Wisconsin’s construction statute reads like the broadest protection in the country and does not reach your indemnity clause at all — the gap between what it says and what it does is the whole story.
Read the first sentence of Wis. Stat. §895.447 and you would conclude Wisconsin has the strongest construction anti-indemnity rule in the country. It voids any provision to limit or eliminate tort liability in a contract relating to construction, alteration, repair or maintenance, including excavation, with no negligence threshold and no dollar mechanism. There is no “sole negligence” qualifier as in Indiana and no monetary-limitation condition as in Florida.
Then read the cases. In Gerdmann the Court of Appeals held this section did not void an indemnity clause in a contract, and in Rural Mutual the Supreme Court held it did not void a subrogation waiver either. The statute is aimed at provisions that eliminate legal responsibility, not at the instruments that decide who ultimately funds it — and risk transfer in a boring subcontract runs almost entirely through the latter. §895.447 leaves the transfer standing and §182.0175(3) forfeits separately. The event that starts both is described on the Directional Drilling Insurance pillar and the pollution liability page.
Boring in Wisconsin? If §895.447 does not touch your indemnity clause, the contract is the exposure. We price it that way.
Get a Free QuoteThe statute covers your work and not your clause
Scope first, because it is the part that reads normally. §895.447(1) applies to a contract relating to the construction, alteration, repair or maintenance of a “building, structure, or other work related to construction, including any moving, demolition or excavation.” A fiber bore is work related to construction and the bore itself is excavation, so subject-matter scope is not the problem here. That already distinguishes Wisconsin from Florida, where a closed list ending at “appliance” was the basis for holding the anti-indemnity statute inapplicable to utility-line work entirely.
The problem is what the statute reaches once it applies. It voids provisions “to limit or eliminate tort liability.” Gerdmann v. United States Fire Insurance Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984), held that this section did not void an indemnity clause in a contract. An indemnity clause does not eliminate anyone’s liability to the injured party; it decides which contracting party bears the cost afterwards. Rural Mutual Insurance Co. v. Lester Buildings, LLC, 2019 WI 70, 387 Wis. 2d 414, applied the same reasoning to a subrogation waiver, reasoning that the waiver did not limit or eliminate the contractors’ responsibility for their negligent acts and that collection of damages does not equate with liability.
For a boring subcontractor the consequence is concrete. The clause a prime hands you, the additional-insured requirement beside it, and any waiver of subrogation in the same paragraph are the instruments that actually move the risk — and on the authority above, §895.447 is not reaching any of them. The statute is not weak; it is aimed somewhere else.
The exception list confirms the picture. §895.447(2) disapplies the section to any insurance contract or worker’s compensation plan, and §895.447(3) to any provision of a contract entered into before July 1, 1978. Two exceptions, against Indiana’s highway and dangerous-instrumentality carve-outs, Texas’s employee-injury and consolidated-programs provisions, and Missouri’s nine. There is very little machinery here because the section is doing very little of this particular work.
A regulatory forfeiture regime, run by the Public Service Commission
Wisconsin’s damage prevention statute takes a different shape from the civil-liability rules other states legislate. Wis. Stat. §182.0175 builds an administrative enforcement structure around the one-call system and leaves the damage claim itself to ordinary law.
Forfeitures are assessed by the commission, on a knowledge standard. Under §182.0175(3)(d)1., in a consent agreement or an order issued under the section, the commission may directly assess a forfeiture of no more than $25,000 for each violation against a person who knew or should have known that the person’s action was in violation of the section. Knew or should have known is a meaningful qualifier — it is not strict liability — and the forum is administrative rather than a courtroom in the first instance.
It compounds daily, and then stops. The same subdivision provides that each day of continued violation constitutes a separate violation, and that no person may be required by the commission to forfeit an amount exceeding $500,000 for a single persisting violation. Forfeitures are remitted to the secretary of administration for deposit in the school fund. The subdivision ends by declaring itself exclusive: no other forfeiture may be imposed for violating this section.
Ten percent goes back into prevention. §182.0175(3)(d)2. requires the commission, for each forfeiture assessed, to make the person assessed pay a surcharge equal to 10 percent of the amount of the forfeiture to the one-call system. The section also establishes a damage prevention fund and provides for an educational course whose fee the one-call system deposits into that fund. Enforcement money therefore splits between the school fund and the damage prevention system itself — a structure none of the other states in this set uses.
One thing this page does not tell you, because we could not verify it: Wisconsin’s statute is long and the publisher paginates it, and the subsections dealing with mismarked facilities and excavator liability were not among those we retrieved. We are not going to characterize a rule we have not read. If a mismark is the fact pattern in front of you, that is a question to put to the contract and to counsel rather than to a general page.
Stop expecting the statute to help
The whole program follows from one adjustment: stop expecting the statute to help. Because §895.447 has been held not to reach indemnity clauses, and not to reach subrogation waivers either, the risk a prime transfers by contract is risk your program absorbs in full. That makes contract review the first underwriting step rather than a formality, and it makes the limits question a function of the obligation the contract creates rather than a residue left after a statute trims it.
On the loss side, the Wisconsin exposure is two-part and they behave differently. The civil damage claim runs under ordinary law, so general liability and umbrella limits are set against an uncapped tort measure. The forfeiture exposure is administrative, compounds per day up to the statutory ceiling, and is generally not the kind of thing a liability policy responds to — which makes prompt remediation a financial control rather than a compliance nicety. Pollution liability remains the signature line for the same reason it is everywhere, because the strike and the frac-out are environmental losses the general liability form excludes.
Because §895.447 has been held not to reach an indemnity clause or a subrogation waiver, the contract does the work here — and this page reads that contract only where it meets the bore. The rest of a Wisconsin program is on our Wisconsin fiber contractor insurance page.
Why Fiber Optic Guard Insurance
On a Wisconsin bore we start from the contract: the indemnity, the additional-insured requirement, and any subrogation waiver are live obligations rather than things §895.447 removed, sizing limits against an uncapped civil claim, and treating a per-day forfeiture exposure as a reason to remediate quickly. If you have been told the statute protects you, send the contract — that is the belief most likely to be costing a Wisconsin contractor money.
Learn more
The operating model and its coverage
Other fiber operating models
Wisconsin
Primary sources cited on this page
Frequently asked questions about Wisconsin directional drilling insurance
Does Wisconsin’s construction statute void the indemnity clause in my bore contract?
Almost certainly not, and the reason is the most counterintuitive fact on this page. Wis. Stat. §895.447(1) provides that any provision to limit or eliminate tort liability as part of or in connection with any contract relating to the construction, alteration, repair or maintenance of a building, structure, or other work related to construction, including any moving, demolition or excavation, is against public policy and void. Read on its own that is the broadest anti-indemnity rule of the states we have measured. But in Gerdmann v. United States Fire Insurance Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984), the court held that this section did not void an indemnity clause in a contract. The statute reaches provisions that limit or eliminate tort liability; an indemnity clause allocates who ultimately pays, which is a different thing. A contractor who assumes the statute is protecting them is relying on something that is not there.
So what does §895.447 actually do?
It voids attempts to contract out of tort liability itself, and Wisconsin courts have drawn that line narrowly. In Rural Mutual Insurance Co. v. Lester Buildings, LLC, 2019 WI 70, 387 Wis. 2d 414, the Supreme Court held the section did not void a subrogation waiver, because the waiver did not limit or eliminate the contractors’ legal responsibility to the property owner for their negligent acts — it waived the owner’s right to recover to the extent damages were covered by property insurance. The court put it directly: collection of damages does not equate with liability. Between Gerdmann and Rural Mutual, the practical reach of §895.447 for a boring subcontractor is narrow, and the risk-allocation instruments a prime actually uses tend to sit outside it.
Does the statute at least cover underground utility work?
Yes — the subject-matter scope is broad, which is what makes the outcome so easy to misread. §895.447(1) applies to a contract relating to the construction, alteration, repair or maintenance of a “building, structure, or other work related to construction, including any moving, demolition or excavation.” A fiber bore is work related to construction and the bore is excavation, so the work is inside the statute. This is a different failure from Florida’s, where a closed list of a building, structure, appurtenance, or appliance put utility-line work outside §725.06 altogether. In Wisconsin the statute covers your job and does not reach your clause. Both traps produce the same practical result — no statutory protection — by opposite routes, which is why the question has to be asked in two parts rather than one.
What are the exceptions to §895.447?
There are only two, and they are the thinnest set among the states we have measured. §895.447(2) provides that the section does not apply to any insurance contract or worker’s compensation plan. §895.447(3) provides that it does not apply to any provision of a contract entered into before July 1, 1978. That is the whole list — no highway carve-out as in Indiana, no dangerous-instrumentality exception, no consolidated-programs provision as in Texas, and nothing resembling Missouri’s nine. The brevity is consistent with a statute doing much less work than its opening sentence suggests.
Does Wisconsin void additional-insured requirements?
Nothing in §895.447 addresses additional-insured status. The section is directed at provisions limiting or eliminating tort liability, and it carries no insurance-mechanism provision of the kind Texas has in §151.104 or the express permission Missouri gives in RSMo 434.100(2)(2). We have not tested the question against other chapters of the Wisconsin statutes. What can be said from §895.447 itself is that a Wisconsin boring subcontractor should not expect this statute to interfere with an additional-insured requirement, any more than it interferes with the indemnity clause it sits beside.
Who enforces the Wisconsin damage prevention law?
The Public Service Commission, and it does so by assessing forfeitures directly rather than through a prosecutor or a court in the first instance. Under Wis. Stat. §182.0175(3)(d)1., in a consent agreement or an order issued under the section, the commission may directly assess a forfeiture of no more than $25,000 for each violation against a person who knew or should have known that the person’s action was in violation of the section. That is a knowledge standard rather than strict liability, and it sits inside an administrative process rather than a civil action — a different posture from Missouri, where the attorney general or a prosecuting attorney brings the case, or Texas, where a county or district attorney does.
How large can a Wisconsin forfeiture get?
Large, because it compounds, but it is capped and it is exclusive. Under §182.0175(3)(d)1. each day of continued violation constitutes a separate violation, so an unresolved condition multiplies rather than sitting still. The same subdivision then provides that no person may be required by the commission to forfeit an amount exceeding $500,000 for a single persisting violation, and that the commission shall remit the forfeitures to the secretary of administration for deposit in the school fund. It closes with a sentence worth noting: no other forfeiture may be imposed for violating this section. The statute is not merely setting a penalty; it is declaring itself the only forfeiture route.
What is the 10 percent surcharge?
It is an unusual funding mechanism that turns enforcement back into prevention. Under §182.0175(3)(d)2., for each forfeiture assessed the commission shall require the person assessed to pay a surcharge equal to 10 percent of the amount of the forfeiture to the one-call system. The section also defines a damage prevention fund, and provides for an educational course whose fee the one-call system deposits into that fund. So a Wisconsin enforcement action produces money for the state school fund and a separate surcharge that finances the damage prevention system itself. No other state in this set routes penalty revenue that way.
What happens when a Wisconsin 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 Wisconsin the difficulty underneath is usually a misplaced belief about §895.447 — a contractor who has been told the state voids risk-shifting in construction contracts discovers, when a claim arrives, that Gerdmann puts indemnity clauses outside the statute and Rural Mutual keeps subrogation waivers outside it too. The contract is doing what it says. 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 building the program to the obligation the contract actually creates rather than the one the statute was assumed to remove.
Insure your Wisconsin bores against the contract, not the statute
Send the prime contract and the bore profile. In Wisconsin the clause you assumed was void is very likely enforceable, and that changes what the program has to carry.
Get a Free Quote