Broker Liability

Freight brokers occupy a unique position in the commercial trucking supply chain.

They do not own trucks. They do not employ drivers. They do not maintain equipment or control routes. What they do is connect shippers who have cargo with motor carriers who have capacity, arranging transportation for compensation without physically performing it.¹

For decades, this intermediary role shielded brokers from liability when the carriers they selected caused crashes. The broker’s defense was straightforward: we did not control the carrier, we did not operate the truck, and we are not responsible for how the carrier performed the transportation we arranged.

That defense is no longer reliable. A growing body of case law, led by the Ninth Circuit’s 2020 decision in Miller v. C.H. Robinson Worldwide, Inc., has held that brokers owe a duty of care in selecting the carriers to whom they entrust freight, and that a broker who negligently selects a carrier with a documented history of safety violations can be held liable when that carrier causes a crash.² The legal theory is negligent selection: the broker had access to the carrier’s safety data, the broker chose to use an unsafe carrier despite that data, and the broker’s selection decision was a proximate cause of the injuries that resulted.³

The issue produced a sharp circuit split, with the Ninth and Sixth Circuits permitting negligent selection claims against brokers and the Seventh and Eleventh Circuits holding that such claims were preempted by the Federal Aviation Administration Authorization Act of 1994. In May 2026, the U.S. Supreme Court resolved the split in the plaintiffs’ favor, holding unanimously in Montgomery v. Caribe Transport II, LLC that state-law negligent selection claims against freight brokers fall within the FAAAA’s safety exception and are not preempted.⁴ Broker negligent selection is now a viable theory of liability nationwide.

What Freight Brokers Do & How They Are Regulated

A freight broker is defined by federal statute as "a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation."⁵ The broker does not transport the freight itself. It matches the shipper’s load with a carrier capable of moving it, negotiating rates and coordinating logistics.

Brokers must meet several federal regulatory requirements:

• Register with FMCSA and hold a broker’s license under 49 U.S.C. § 13904.⁶
• Maintain a surety bond or trust fund of $75,000 under 49 C.F.R. Part 387, Subpart C.⁷
• Designate process agents through the filing of a BOC-3 form under 49 C.F.R. § 366.⁸

These requirements are regulatory prerequisites for operating as a broker, but they do not impose specific standards for how a broker must vet or select the carriers it uses. No federal regulation prescribes minimum carrier selection criteria for brokers. The duty to exercise reasonable care in selecting carriers arises from state tort law, not from the Federal Motor Carrier Safety Regulations.⁹

What the federal regulatory framework does provide is the information a broker needs to make an informed selection decision. FMCSA maintains and makes publicly available the safety data for every registered motor carrier.¹⁰

This data is accessible through the FMCSA’s Safety and Fitness Electronic Records (SAFER) system and the Safety Measurement System (SMS).¹¹ A broker that selects a carrier without consulting this publicly available data has chosen not to look at information that would have revealed whether the carrier had a history of safety deficiencies.

The Negligent Selection Theory

The negligent selection claim against a freight broker is an application of the Restatement (Second) of Torts § 411, which provides that an employer is liable for physical harm to third persons caused by the employer’s failure to exercise reasonable care to employ a competent and careful contractor.¹² In the broker context, the "employer" is the broker that selects the carrier, and the "contractor" is the carrier that performs the transportation. The broker’s duty is to exercise reasonable care in selecting a carrier that is competent and safe to perform the assigned transportation.¹³ The elements of a negligent selection claim against a broker generally require the plaintiff to establish several key factors.¹⁴

The evidence that establishes the breach typically comes from the carrier’s publicly available safety data. A broker that selected a carrier with an out-of-service rate twice the national average, multiple unresolved safety violations, a pattern of hours-of-service noncompliance, and a crash rate significantly above its peer group has selected a carrier whose safety record was objectively deficient. The broker’s access to this data is not disputed; FMCSA makes it available precisely so that market participants can make informed decisions about which carriers to use.

A broker that ignores this data and selects the cheapest available carrier regardless of safety record has arguably failed to exercise the reasonable care that the negligent selection theory requires.

FAAAA Preemption: The Defense & the Safety Exception

The primary defense brokers asserted against negligent selection claims was preemption under the Federal Aviation Administration Authorization Act of 1994. The FAAAA provides that a state "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any broker."¹⁵ Brokers argued that negligent selection claims are "related to" the broker’s core service of arranging transportation, and that allowing such claims to proceed would effectively regulate broker services through state tort law, precisely what the FAAAA was designed to prevent.

All circuits that addressed the issue agreed on the threshold question: negligent selection claims against brokers are "related to" the broker’s services within the meaning of § 14501(c)(1).¹⁶ The disagreement was over whether such claims are saved from preemption by the FAAAA’s safety exception, which provides that the FAAAA "shall not restrict the safety regulatory authority of a State with respect to motor vehicles."¹⁷

Two circuits sided with plaintiffs:

• Ninth Circuit in Miller v. C.H. Robinson Worldwide, Inc.: held that the safety exception applies to negligent selection claims because Congress intended to preserve the states’ broad power over safety, including the ability to regulate safety through common-law tort claims. The court found the plaintiff’s claim had the requisite "connection with" motor vehicles because it arose out of a motor vehicle accident.¹⁸
• Sixth Circuit in Total Quality Logistics, LLC v. Cox: agreed, holding that motor vehicles are "core to the services provided by brokers" and that a negligent selection claim "involves motor vehicles" within the meaning of the safety exception.¹⁹

Two circuits sided with brokers:

• Seventh Circuit in Ye v. GlobalTranz Enterprises, Inc.: held that the safety exception applies only where the claim bears a sufficiently "direct link" to motor vehicle safety, and that negligent selection claims against brokers are too attenuated because they challenge the broker’s choice of carrier rather than the broker’s own operation of a motor vehicle.²⁰
• Eleventh Circuit in Aspen American Insurance Co. v. Landstar Ranger, Inc.: agreed, reasoning that brokers do not "provide motor vehicle transportation" and that negligent selection claims are "necessarily one step removed" from a motor vehicle.²¹

The Supreme Court Ruled: Broker Negligent Selection Claims Are Not Preempted

The Supreme Court granted certiorari in Montgomery v. Caribe Transport II, LLC on October 3, 2025 to resolve the circuit split.²² The question presented was: "Does § 14501(c) preempt a state common-law claim against a broker for negligently selecting a motor carrier or driver?"

On May 14, 2026, the Court answered that question no, in a unanimous 9-0 decision. Justice Barrett delivered the opinion of the Court; Justice Kavanaugh filed a concurring opinion joined by Justice Alito. The Court held that state-law negligent hiring claims against freight brokers fall within the FAAAA’s safety exception and are therefore not preempted.²³

The underlying facts were a 2017 Illinois crash. Petitioner Shawn Montgomery suffered severe injuries, including the amputation of his leg, when a truck operated by respondent Caribe Transport II struck his parked vehicle on the shoulder of Interstate 70. C.H. Robinson had coordinated the shipment. Montgomery alleged that C.H. Robinson knew or should have known, from Caribe Transport’s safety rating, that hiring the carrier was reasonably likely to result in crashes that would injure others. The federal district court dismissed the negligent-hiring claim as preempted, and the Seventh Circuit affirmed. The Supreme Court reversed.²⁴

The practical implications are significant. Brokers now face negligent selection exposure in every jurisdiction. The broker’s carrier vetting process has become a central issue in truck crash litigation nationwide. Brokers can be expected to document their carrier selection processes more rigorously, maintain records of what safety data they reviewed, and establish internal protocols for declining carriers with poor safety records. For plaintiffs injured in crashes involving broker-arranged transportation, Montgomery removes a federal defense that had shielded a substantial portion of the industry from tort accountability.

The Carrier's Non-Delegable Duties & Broker Exposure

Independent of the FAAAA preemption question, the federal regulatory framework imposes certain obligations on motor carriers that cannot be delegated to brokers. Under 49 C.F.R. § 390.11, whenever a duty is prescribed for a driver, the motor carrier must require observance of that duty.²⁵ Under 49 C.F.R. § 392.1, every motor carrier must comply with the applicable safety regulations.²⁶ These obligations attach to the carrier, not the broker.

However, when a broker exercises operational control over the transportation beyond mere arrangement, the broker may cross the line from broker to motor carrier, bringing itself within the scope of carrier-level regulatory obligations. A broker may be functioning as a motor carrier regardless of its registration status in certain circumstances.²⁷

In such cases, the broker’s exposure extends beyond negligent selection to include the full range of carrier liability theories:²⁸

• Respondeat superior
• Negligent hiring
• Negligent retention
• Negligent entrustment

Under 49 U.S.C. § 13102, the distinction between a broker and a motor carrier depends on whether the entity arranges transportation or provides it.²⁹ A broker that provides transportation, even if it calls itself a broker, is a motor carrier for regulatory and liability purposes.

What Discovery Should Target

Discovery in a broker liability case should be designed to establish what the broker knew about the carrier’s safety record at the time of selection and whether the broker exercised reasonable care in making that selection.

Key categories include:³⁰

• The broker’s carrier vetting policies and procedures, including any written standards for minimum safety qualifications.
• The broker’s records of the specific vetting performed for the carrier involved in the crash, including any FMCSA data reviewed, insurance verification conducted, and safety scores evaluated.
• The broker’s communications with the carrier, including any discussions of safety requirements, driver qualifications, or equipment standards.
• The broker’s internal communications regarding the carrier selection decision, including any discussions of safety concerns, cost considerations, or time pressure that influenced the choice.
• The carrier’s publicly available safety data from FMCSA at the time of selection, including CSA scores, out-of-service rates, crash history, and safety rating.³¹
• The broker’s history of using the carrier, including any prior incidents, complaints, or safety concerns associated with previous loads assigned to the same carrier.
• The broker’s compensation structure, to determine whether the broker was incentivized to select the cheapest carrier rather than the safest carrier.
• Any communications between the broker and the shipper regarding carrier safety requirements or the shipper’s expectations for the carrier’s safety qualifications.
• The broker’s insurance coverage, including any errors-and-omissions policies that may respond to negligent selection claims.

The objective is to reconstruct the broker’s selection decision and determine whether the broker exercised the care that a reasonable broker would have exercised in light of the carrier’s publicly available safety data.

Sources

• [1] 49 U.S.C. § 13102(2), Definition of broker.
• [2] Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020).
• [3] Id.
• [4] Montgomery v. Caribe Transport II, LLC, 608 U.S. ___, No. 24-1238 (May 14, 2026).
• [5] 49 U.S.C. § 13102(2).
• [6] 49 U.S.C. § 13904.
• [7] 49 C.F.R. Part 387, Subpart C.
• [8] 49 C.F.R. § 366.
• [9] Christopher Dolan et al., Sorting Out All the Possible Tortfeasors in Truck Crash Cases, Advocate Magazine (April 2023).
• [10] Federal Motor Carrier Safety Administration, Safety Measurement System (SMS).
• [11] Federal Motor Carrier Safety Administration, Safety and Fitness Electronic Records (SAFER).
• [12] Restatement (Second) of Torts § 411 (1965).
• [13] Finding Liability and Insurance in Cases Involving Motor Carriers, Plaintiff Magazine.
• [14] Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004).
• [15] 49 U.S.C. § 14501(c)(1).
• [16] Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453, 459 (7th Cir. 2023).
• [17] 49 U.S.C. § 14501(c)(2)(A).
• [18] Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1030 (9th Cir. 2020).
• [19] Total Quality Logistics, LLC v. Cox, 142 F.4th 847, 855 (6th Cir. 2025).
• [20] Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453, 459 (7th Cir. 2023).
• [21] Aspen American Insurance Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1272 (11th Cir. 2023).
• [22] Montgomery v. Caribe Transport II, LLC, No. 24-1238 (U.S. cert. granted Oct. 3, 2025).
• [23] Montgomery v. Caribe Transport II, LLC, 608 U.S. ___, No. 24-1238 (May 14, 2026) (Barrett, J.).
• [24] Id.
• [25] 49 C.F.R. § 390.11.
• [26] 49 C.F.R. § 392.1.
• [27] 49 U.S.C. § 13102.
• [28] Christopher Dolan et al., Sorting Out All the Possible Tortfeasors in Truck Crash Cases, Advocate Magazine (April 2023).
• [29] 49 U.S.C. § 13102.
• [30] Broker Liability Dispute Finally Lands Before the Supreme Court, Land Line Magazine (OOIDA).
• [31] Congressional Research Service, Legal Sidebar LSB11400, Freight Broker Liability and FAAAA Preemption.