A Post-Montgomery Post | Practical Thoughts Regarding Impact of the Supreme Court’s Decision and Carrier Selection Going Forward

Unless you’ve been living under a rock, you’re probably heard by now about yesterday’s Supreme Court’s 9-0 decision in Montgomery v. Caribe Transport II that freight brokers can face state negligent hiring/selection claims associated with the motor carriers they hire being involved in a highway accident. The purpose of this post is not to discuss the legal underpinnings of the Supreme Court’s decision. Instead, we will share some practical thoughts on how this decision will impact the transportation industry and how brokers (and shippers) should consider when approaching motor carrier hiring going forward.

What does this decision mean for freight brokers and shippers of goods?

The Supreme Court’s decision means that freight brokers can face state law negligence claims (“negligent hiring” or “negligent selection”) brought by injured plaintiffs in highway accident cases.

The impact of the Supreme Court’s decision cannot be understated. In any highway accident involving a freight broker, the broker will be sued. Although brokers are not required by law to maintain liability insurance covering personal injury in accidents, all brokers will need to have that coverage. And, although most brokers with any level of sophistication should already have liability coverage, the cost of that coverage will increase exponentially. Higher fixed costs, including insurance, vetting, staffing, claims handling, and accident liability could cause the shuttering of many freight brokers or consolidation towards larger brokers.

Regarding shippers – before yesterday’s decision, a number of courts held that negligent hiring/selection claims against shippers that hire motor carriers were also preempted by federal law. See e.g. Wilson-Love v. Dealer’s Choice Truckaway System, Inc., 2026 WL 1084878 (April 21, 2026) (holding that negligent selection claims against auto manufacturer that hired motor carrier directly were preempted by FAAAA). These decisions followed the same reasoning as freight broker cases where courts held in favor of preemption. Practically, this means that shippers will also face state law negligence claims associated with motor carriers they hire to ship their goods.

What does this decision not mean?

Although brokers and shippers can face state law negligence claims associated with motor carriers they hire, the decision does not mean that negligence is established. Said another way, injured plaintiffs will need to establish that the broker or shipper was in fact negligent.

This will need to be demonstrated with each individual state’s established case law regarding negligence, and proven by facts surrounding each individual case. The facts will involve the broker or shipper’s carrier-selection protocols, standards, and policies, along with the motor carrier’s underlying safety scores and metrics.

Additionally, as noted in the Supreme Court’s decision, negligent selection claims related to intrastate shipments remain preempted. So, there will be some shipments where a shipper or broker can still rely on federal preemption.

What carrier-selection protocols should freight brokers and shippers consider?

Until case law is developed, this will be a difficult question and a judgement decision. Ultimately, however, freight brokers and shippers should have written motor carrier selection protocols, policies and procedures – and they should follow them.

There is a lot of FMCSA data out there that could be reviewed towards trying to assess motor carrier safety. And, most freight brokers use carrier selection tools like Highway, RMIS, Carrier Assure, Carrier411, The Tea, etc. towards vetting motor carriers. However, (1) relying solely on a third-party carrier vetting platform is unlikely save a broker or shipper from a negligence claim; and (2) uniformly and consistently evaluating FMCSA data is likely to prove difficult.

Brokers and shippers should at least:

1. Ensure the motor carrier has active operating authority. Although not necessarily indicative of a motor carrier’s safety, ensuring that the motor carrier has been operating for a period of time (e.g., at least 12 months) and has at least some roadside inspections is a good idea.

2. Ensure the motor carrier has valid insurance. Because federally required minimum public liability insurance coverage is woefully insufficient in light of today’s potential accident liabilities ($750k for general commodities), shippers and brokers should ensure the motor carrier maintains some level of coverage beyond minimum legal requirements.

3. Ensure the motor carrier does not have an “Unsatisfactory” safety rating. And if they have a “Conditional” rating, you’ll have to decide whether to decline to use them altogether or to demand proof they have taken sufficient corrective actions to address the issues that led to the downgrade (i.e., if the conditional rating is several years old). As a note: most motor carriers are “unrated.” The only way for a motor carrier to obtain a safety rating from the FMCSA is to be selected and undergo a full compliance review by the FMCSA. Because the FMCSA is unable to conduct full compliance reviews of most motor carriers, they remain “unrated.”

Use of carrier-selection tools/platforms are likely to be required by all liability insurers going forward, so a broker or shipper’s carrier selection protocols should take into account how those platforms are used and the information presented. In addition to publicly-available safety, those tools are helpful towards assessing whether carriers are “chameleon” carriers reincarnated to avoid FMCSA regulation due to poor safety scores and/or accident liability.

Additionally brokers and shippers may consider reviewing some additional data:

• Out-of-Service Rates: Motor carrier vehicle and driver out-of-service rates are publicly available, and marked against industry national averages. There is caution in using out-of-service rates as a basis for determining whether a motor carrier is “safe”: OOS rates are a percentage, based on the number of inspections. So, a carrier that has only been inspected 4 times with one OOS violation may be above national averages. And, carriers cannot control how often that they are inspected by law enforcement.

• CSA Scores: FMCSA’s motor carrier CSA scores are not publicly available, at least for property carriers. Although there are tools that seek to use FMCSA’s data towards calculating a motor carrier’s CSA scores, these are not always accurate. Brokers and shippers could request a motor carrier’s CSA scores directly from the motor carrier, but that comes with its own inherent difficulties. And, those scores change frequently over time.

• Accidents Involving Fatalities/Injuries: This information is publicly available, but, in-of-itself, does not necessarily indicate a motor carrier’s safety, as these accidents could have been non-preventable on the carrier’s part and still show up in the carrier’s data.

Another key item to keep an eye on: The number of trucks a motor carrier has. This information is publicly available and is periodically reported to the FMCSA by the motor carrier. DO NOT tender more shipments than a motor carrier should reasonably be able to transport. Doing so would indicate that the motor carrier is illegally brokering/double brokering shipments to other motor carriers.

Finally, it is important to note: motor carrier vetting should not just be conducted at the time of carrier onboarding. Carrier vetting should be conducted periodically.

What will the FMCSA do?

Although we cannot opine what the FMCSA may do, it is clear that the FMCSA should do something, including: (1) provide guidance as to what information brokers and shippers should use to determine whether a motor carrier is “safe”; (2) consider making CSA scores publicly available after its long-planned revisions to the methodology behind those scores are rolled out; and (3) start assigning a safety rating for every motor carrier.

Although the FMCSA has struggled to adequately regulate motor carriers to-date (again, the agency is woefully underfunded), we do have faith in the current leaders at DOT/FMCSA to improve the status quo, as has been demonstrated by the actions taken with respect to English Language Proficiency and non-domiciled CDLs.

Who are the “winners”?

Aside from injured plaintiffs and their attorneys across the nation, we suspect that larger and/or more sophisticated fleets will end up being the big “winners” in the market going forward. As brokers and shippers tighten carrier pools, freight may move towards fleets that have established safety departments and operational controls.

Tort Reform is needed.

Brokers and shippers are likely to join motor carriers, insurers, and state trucking associations in their fight for tort reform related to highway accident liability. For example, reforms such as bifurcation of jury trials (liability trial phase, then a damages trial phase) have been passed in several jurisdictions.

Ultimately, the nuclear verdicts the industry has been experiencing has raised costs for everyone involved – including consumers. It’s hard (and heartbreaking) to put a value on human life, but at some point, things can’t continue as they have.