Key Takeaways

• FAAAA’s safety exception preserves state-law negligent-hiring claims against freight brokers significantly altering risk exposure nationwide.
• Kavanaugh’s concurrence, joined by Alito, called the case “close” and supplied limiting principles emphasizing reasonable carrier vetting and proximate cause arguments as strategies to minimize broker liability.
• Carrier-vetting takes on new importance for limiting liability and brokers should immediately revisit carrier selection processes and implement changes where necessary.

What was the Court’s Reasoning?

Today, in Montgomery v. Caribe Transport II, LLC¹, a unanimous Supreme Court held that negligent carrier selection claims are saved by the FAAAA’s safety exception.² Justice Barrett, writing for the majority, applied a straight-forward textualist analysis. Rather than engage with the difficult question of whether negligent-hiring claims are “related to” a broker’s price, route, or service under § 14501(c)(1), the Court assumed without deciding that they are preempted and asked only whether the safety exception saves such claims. The Court’s analysis can be broken into three parts.

State common-law duties are an exercise of state safety authority. All parties agreed that common-law duties and standards of care form part of a state’s authority to regulate safety. Moreover, “negligent-hiring claims impose a duty of reasonable care in employing a contractor for work carrying a risk of physical harm.”³

“With respect to” means “concerns.” Although the FAAAA does not define “with respect to,” the Court applied its ordinary meaning, borrowing from its prior construction of the same phrase elsewhere in the statute in the Court’s prior decisions.⁴ “Motor vehicle,” in turn, is statutorily defined as a truck used in transportation.⁵

A negligent-hiring claim against a broker concerns motor vehicles. Requiring a broker to exercise ordinary care in carrier selection “concerns” the trucks that will haul the goods—“most obviously, the trucks that will transport the goods.” The claim therefore falls within the safety exception, and preemption that would otherwise protect brokers from liability gives way.

This textualist analysis also enabled the Court to look past the inconsistencies and imprecision of the statutory language that C.H. Robinson rightly identified. The Court found C.H. Robinson’s counterarguments unpersuasive. First, the Court disagreed with the argument that the safety exception, as put forward by Montgomery, would “swallow the FAAAA’s express preemption provision whole” because the safety exception saves only the subset of preempted claims that involve motor-vehicle safety. Second, the surplusage argument failed because any overlap with the FAAAA’s other carve-outs (e.g., hazardous cargo, weight-based route controls, minimum insurance) is based on the State’s regulatory authority over “safety” rather than from a more broad or narrow interpretation of what laws are “with respect to motor vehicles.” Finally, the intrastate/interstate anomaly—the strongest argument in favor of C.H. Robinson’s preemption argument—was not without merit but failed to move the Court because it would have been “even odder to say that the alleged tort … is not an exercise” of the State’s safety regulatory authority “with respect to motor vehicles.”

How Does Kavanaugh’s Concurrence Provide a Roadmap to Limit Liability?

Justice Kavanaugh, joined by Justice Alito, agreed with the majority opinion in full but wrote separately to contextualize the Court’s decision and to provide guidance on how brokers should approach liability mitigation going forward.

A close case.The concurrence acknowledged the “powerful points” the Seventh and Eleventh Circuits raised in finding that negligent selection claims are preempted, and walked through the statutory and practical arguments that cut in favor of the brokers, such as the disparate treatment of insurance requirements and the intra- versus interstate anomaly. Nevertheless, two statutory and historical arguments prevailed. First, the FAAAA was an economic deregulation statute, not a safety deregulation statute, largely leaving “intact the extant system of safety regulation.” Congress would not have “subtly sliced and diced” brokers out of a tort regime that still applies to carriers. Second, the preemption argument “lies in some tension with the absence of meaningful safety-related regulation of brokers at the federal level.” As Justice Kavanaugh put it, the lack of federal safety regulation of brokers’ carrier selection supported Montgomery’s argument “because it is doubtful that Congress, through indicate language in an economic-deregulation statute, would allow brokers to operate in a black hole with no meaningful safety-related regulation.”

With limiting principles. The holding that the safety exemption saves state negligence claims from preemption is not, however, without limits and “the Court’s decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents.” The concurrence identified a liability limitation roadmap:

• Brokers that adopt reasonable vetting and arrange transportation with reputable carriers “should be able to successfully defend against state tort suits.”
• The proximate-cause requirement in “typical state tort law should help protect brokers from excessive liability.”

What Steps Should Brokers Take Next?

Although the Court’s decision is only hours-old, the operational, risk-mitigation, and litigation strategic responses must begin immediately. The following steps are essential.

1. Carrier-Vetting Audit. Engage counsel and internal teams to conduct a complete audit of the current carrier-qualification and selection processes. The standard is no longer whether the motor carrier in question is authorized to operate by the FMCSA. Instead, brokers need to ask whether they exercised the reasonable care in vetting and selecting a carrier, and if they are consistently using a standardized process when selecting carriers in the course of business.
2. Revisit Carrier Agreements. Existing broker-carrier agreements should be reviewed and revised to include representations and warranties on safety compliance, ongoing notification obligations for safety rating changes, indemnification provisions specific to negligent-selection and vicarious-liability theories, and clear allocation of liability for accidents involving the carrier’s equipment or drivers.
3. Carrier Vetting and Selection Training. Brokers should adopt standardized carrier onboarding and selection processes, or revisit existing processes, to ensure that vetting and selection are conducted consistent with the increased liability risk. Train carrier-vetting personnel on the practical implications of Montgomery.
4. Contemporaneous Documentation. Onboarding decisions should be supported by a contemporaneous record of the relevant data evaluated, including but not limited to safety ratings, and brokers should maintain documentation of how those carriers are periodically reviewed for regulatory compliance and safety performance.
5. Escalation Protocols. Establish a written escalation procedure for carriers presenting conditional safety ratings, recent out-of-service violations, BASIC alerts above intervention thresholds, or material insurance gaps.
6. Insurance Review. Engage insurance providers early to confirm the scope of broker contingent-liability coverage, excess limits, and any exclusions applicable to negligent-selection claims. The insurance market will likely reprice risk in light of this decision through renewals over the next twelve to eighteen months, and may more closely scrutinize carrier vetting and selection processes.
7. Active File Review. Identify pending lawsuits that had been stayed pending Montgomery or argued on the basis of Seventh or Eleventh Circuit precedent. Those matters now require fresh strategic assessment. Plaintiffs will move quickly to lift stays and amend complaints.

How Will Courts Continue to Grapple with FAAAA Preemption and Broker Liability?

Montgomery answers the central question regarding broker liability, but additional questions still remain unresolved.

Whether § 14501(c)(1) preempts these claims in the first instance. The Court expressly assumed without deciding that negligent-hiring claims are “related to” a broker’s services. That door is not closed and with it the scope of FAAAA preemption, which the Court has yet to fully resolve.

The constitutionality of subsection (b). Footnote 4 of the majority opinion flagged but explicitly declined to address whether 49 U.S.C. § 14501(b)(1) — which purports to preempt state regulation of purely intrastate broker activities — exceeds Congress’s authority. This is a future case waiting to happen, and one that could impact the regulatory regime Montgomery leaves in place.

The standard of care, state by state. Montgomery opens the courthouse door but does not define what reasonable care requires. Each state’s negligent-hiring caselaw will now bear the weight of broker-selection litigation. Expect significant variation.

The proximate-cause defense. Justice Kavanaugh emphasized proximate cause as a guardrail against excessive liability. Whether trial courts apply that doctrine aggressively to truncate negligent-selection cases at the pleading or summary-judgment stage will determine whether Montgomery becomes a watershed plaintiffs’ victory or a more measured restoration of background tort principles.

Vicarious liability. Montgomery addressed only negligent hiring. The vicarious-liability theory — that brokers exercise sufficient control over carriers to be held liable for the carrier’s torts under agency principles — was rejected by the district court on independent grounds and was not before the Supreme Court. Expect plaintiffs to continue developing this theory.

Shipper liability. Brokers are not the only intermediaries in the supply chain. Plaintiffs have been testing negligent-selection theories against shippers as well—on the theory that the shipper selected the broker. Montgomery’s reasoning does not directly reach shipper liability, but the doctrinal logic — that common-law duties of care are state safety authority preserved by the FAAAA — does not stop at the broker.

The Road Ahead

Montgomery will reshape broker-liability litigation for the foreseeable future. Negligent-selection cases will increase in volume and carrier-vetting standards will move from internal best practice to legal duty. But the ruling is not the end of the analysis. It is the beginning of a multi-year cycle in which courts will define the contours of broker negligent-selection doctrine, the proximate-cause guardrails Justice Kavanaugh signaled, and plaintiffs’ counsel will work to expand the claims and parties not subject to the protective shield of preemption.

For brokers, the next twelve months are decisive. The brokers who are first-movers in implementing vetting and carrier selection processes responsive to the Montgomery decision will be in a materially stronger position to manage the increased costs and challenges of doing business.

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