Here's What the Plaintiff's Lawyer Sees When They Open Your Carrier File

A plaintiff's attorney I know told me once that she can read a broker's carrier file in under ten minutes and know whether she's going to win. Not whether the carrier was at fault — that's a separate question. Just whether the broker is going to write a check. I've thought about that conversation every time I build a vetting record since.

Since the Supreme Court handed down Montgomery v. Caribe Transport II in May, freight brokers in every state can now be sued in state court for negligently selecting an unsafe carrier. The 7th and 11th Circuits used to hand brokers a preemption shield under the FAAAA. That shield is gone. What's left is your carrier file — and whether it tells the story of a reasonable professional who did their job, or an operator who ran a name through a screen, got a green light, and hit send on the load tender.

The file is going to be read. You might as well know how.

The Preservation Letter Lands Before You Think It Will

Most brokers imagine the sequence goes: accident, lawsuit, discovery, then someone asks for documents. That's not how it works. Plaintiff's counsel sends a preservation letter to the broker within days of the accident — sometimes before the injured party is out of the hospital. It demands that you retain "all records related to the hiring, vetting, and approval of [Carrier Name], including but not limited to..."

If you've already purged something, you have a spoliation problem. If you don't know where your records live, you have a credibility problem. If your records are screenshots in someone's email inbox, you have a presentation problem.

49 CFR § 371.3 requires every broker to keep a record of each transaction, including the names of the parties, the date of the transaction, the commodity, the amount of the charges, and copies of all contracts between the broker and the shipper and carrier. Three years. That's the regulatory floor. It says nothing about BASIC scores or insurance verifications — those are the proof of your diligence, not the minimum the reg demands. The carrier file that holds up in court goes well beyond § 371.3.

They Read the Timestamps First

Before counsel reads a single document, they look at the metadata. When was each document created? When was the last SAFER pull? When did the carrier's insurance certificate come through? When was the load tendered?

This is the first place brokers lose. A carrier file that shows a SAFER pull from three months before the load — or worse, no pull at all — is a file that says "I didn't actually check this carrier before putting them on my road." The strongest defense is a timestamped verification that happened close to the load date, not a one-time carrier setup check from eighteen months ago.

I'll give you a real scenario. MC-1247893 / DOT-3567102. Flatbed operation out of Memphis. Carrier Agreement signed in April. Load tendered in September. The broker's file had the April SAFER pull, the April ACORD 25, and nothing else. Between April and September, the carrier's Unsafe Driving BASIC had climbed from 42 to 71 — past the 65-percentile intervention threshold. The carrier's lead driver had two preventable crashes on his record, both filed with FMCSA in June. None of it was in the file. The plaintiff's expert witness spent twenty minutes on that BASIC chart during deposition.

The broker's position was "we vetted them when we onboarded them." Plaintiff's position was "you vetted them once and then stopped paying attention." The jury agreed with plaintiff.

The Insurance Gap Is the Second Place You Lose

Insurance certificates expire. Carriers get cancelled mid-policy. Most brokers know to check the ACORD 25 when they onboard. Fewer check whether that insurance is still in force before the load moves.

Plaintiff's counsel pulls the carrier's insurance history from FMCSA's system. If there's a lapse — even a brief one — they'll find it. If the lapse overlapped with the date of loss, you're explaining why you tendered a load to an uninsured carrier. If it predated the load by three months but you never re-verified, you're explaining why your verification was stale.

The carrier minimum under 49 CFR Part 387 is $750,000 BIPD for a general freight carrier in interstate commerce, $1 million for hazmat. Most brokers know this. What plaintiff's counsel is looking for isn't whether you knew the minimum — it's whether you actually confirmed the carrier met it on the date the load moved, not the date you onboarded them.

The ACORD 25 you collected six months ago proves you checked six months ago. It doesn't prove anything about today.

Red Flags in the File Are Worse Than No File

Here's the counterintuitive part. A file that shows you found a red flag and approved the carrier anyway is often worse than a file with nothing notable. "We saw the elevated BASIC score and approved anyway" is not a sentence you want to say in a deposition room.

I've seen it go the wrong way: a broker's internal notes showed that the carrier had an OOS rate of 28.3% — well above the national average — and someone had written "acceptable risk, owner will monitor" in the field. That annotation was Exhibit 7.

This doesn't mean you should hide findings or skip the file entirely. The opposite. It means your process needs to be something you can stand behind. If you're approving a carrier with elevated indicators, you should know why, be able to articulate it, and have applied additional safeguards — increased insurance requirements, more frequent re-vetting, load-by-load reauthorization. "Acceptable risk, owner will monitor" is not a safeguard. It's a note that you knew and went ahead anyway.

The Crash History Review They're Expecting You to Have Done

FMCSA's crash data is publicly available. Not just the count — the date, the state, the severity category, whether there were fatalities. Plaintiff's counsel pulls it. They expect you to have pulled it too.

What they're testing is whether you actually looked, or whether you just looked at the overall safety rating. A carrier can be "Satisfactory" rated and have four crashes in the last two years, two of them involving injuries. The rating doesn't capture recent trend. It doesn't capture whether the crashes were rear-end collisions — a driver behavior pattern — versus run-off-road events that might be mechanical. Reading crash history isn't just "how many" — it's when, what severity, and whether there's a pattern.

Under 49 CFR § 390.9, carriers are required to keep their safety information accurate and current. That's their obligation. But if you're tendering loads, the accuracy of what you act on is on you. The reg doesn't give you a pass for relying on stale data — it just means the carrier was separately out of compliance.

The Signed Carrier Agreement That Doesn't Say What You Think It Says

Almost every broker has a carrier agreement. Plaintiff's counsel reads it carefully, looking for two things: what you said you would do, and whether you did it. If your agreement says "Carrier acknowledges that Broker verifies authority and insurance quarterly," and your file shows a single pull from a year ago, you've just proved you didn't follow your own stated procedure.

Agreements that are written to over-promise your diligence create a paper standard you can fail against. A better approach is a brief, accurate statement of what you actually do and when — then do it.

The other thing counsel looks for is indemnification clauses. Your agreement almost certainly has one requiring the carrier to indemnify you for claims arising from their negligence. That's standard. What it doesn't do — and this is the part that matters post-Montgomery — is protect you from a claim that the negligence was yours, in selecting or continuing to use an unsafe carrier in the first place. The indemnification clause covers the carrier's negligent driving. It doesn't cover your negligent hiring.

What the File Needs to Show

Plaintiff's counsel is trying to answer one question: did this broker exercise reasonable care in selecting this carrier? The file should answer it. Not defensively, not in the minimum — affirmatively, with timestamps.

That means a SAFER pull within a reasonable window of the load date. It means an insurance verification that confirms current coverage, not just an old certificate in a folder. It means a BASIC score review with a record of what you saw. It means a crash history review. It means a carrier agreement that says what you actually do. It means a timestamp on all of it.

If there were elevated indicators, it means a documented rationale for why you proceeded and what additional steps you took. "We saw the Crash Indicator at 58 and we required a higher insurance minimum and re-verified the day before the load moved" is a defense. "Acceptable risk" is not.

How I Document This

I run every carrier through DOTScreener before the load tender — not when I onboard them, before the load. The screening pulls authority status, insurance verification, BASIC scores, crash history, and OOS rate in one pass and stores it with a timestamp against that load. If a carrier's indicators have moved since the last screen, I see it. If the insurance has lapsed, I see it.

The record that gets exported isn't a notes field with my observations — it's a dated snapshot of what the data showed at that moment, in a format that can be printed and put in a file. Plaintiff's counsel will ask for "all records evidencing your review of this carrier's safety information prior to tendering this load." That snapshot is the answer.

For any carrier where I'm seeing elevated indicators — an OOS rate above 20%, a BASIC score past the intervention threshold, recent crash activity — I document the specific numbers, the date, and the additional step I took (re-verification the morning of the load, a required insurance endorsement, whatever it was). The record shows I saw it and I thought about it, not that I saw it and ran past it.

The morning of a high-value load, I pull it again. The re-verification takes about ninety seconds. The record of that pull is the difference between "I checked them" and "I checked them before this load moved."

One More Thing

I used to think that building a thorough carrier file was about protecting myself from a lawsuit. I don't think that anymore. Post-Montgomery, the better framing is: the file is proof that you actually did your job. It's not defensive paperwork. It's evidence of professional practice.

The brokers who are going to get hurt in the new environment aren't the ones who ran a bad carrier. They're the ones who couldn't prove they did anything at all. The plaintiff's lawyer looking at an empty file doesn't have to prove you hired a bad carrier — she just has to prove you didn't look.

Don't give her that.

How I Document This

• Pre-tender screen with DOTScreener: authority status, insurance, BASIC scores (all seven), OOS rate, crash history — timestamped, stored against the load.
• For elevated indicators: note the specific metric and the specific additional step taken (re-verify morning of load, escalate to operations manager, require higher cargo coverage from carrier).
• For re-verification before the load moves: a second timestamped screen on the day of tender. Ninety seconds. Documented.
• Carrier agreement on file, dated, carrier-signed, stating the actual diligence process.
• ACORD 25 with confirmation that the listed insurer is still active on the date of the load — not just that the certificate was issued.

The carrier file you build today is the defense exhibit you'll use later. Build it like someone's going to read it. Because they will.

— Mason Lavallet

Founder, DOTScreener.com