SCOTUS Rules Brokers Liable: The End of FAAAA Preemption (and Why Shippers Should Be Worried Too)

On May 14, 2026, the United States Supreme Court did something it almost never does in commercial litigation: it ruled 9-0 against the freight industry's longest-running liability shield. With one opinion, Montgomery v. Caribe Transport II, LLC, 608 U.S. ___ (2026), Justice Barrett ended fifteen years of circuit-split confusion and confirmed what plaintiffs' attorneys have been arguing since 2011: freight brokers can be sued under state negligence law when they tender loads to unsafe carriers and someone gets hurt.

If you broker freight, this changes how you do business starting Monday morning. If you ship freight and you tender loads directly to carriers — or worse, you tender to brokers without a documented vetting process — this changes your exposure too, and we'll explain exactly why.

The 60-Second Summary

The Federal Aviation Administration Authorization Act of 1994 ("FAAAA") preempts state laws that interfere with the "price, route, or service" of motor carriers and brokers. For three decades, brokers argued that state negligence claims fell within that preemption — that if Congress wanted brokers to be liable for carrier safety, Congress would have said so. Some courts agreed. Some didn't. The Ninth Circuit said no preemption. The Seventh Circuit said yes preemption. The split was real, and the Supreme Court took Montgomery to resolve it.

The Court resolved it against the brokers. Unanimously. The FAAAA contains an explicit "safety regulatory authority" carveout that preserves state authority over motor vehicle safety. Negligent carrier selection, the Court held, is a state safety rule that operates on brokers because of their role in the safety chain — not because of their economic role as freight intermediaries. State tort law applies. Brokers owe a duty of ordinary care.

That's the whole ruling in one paragraph. The implications fill the rest of this article.

The Facts of Montgomery — and Why They Matter

Plaintiff Shawn Montgomery was driving on an Illinois interstate in 2019 when a Caribe Transport II tractor-trailer crossed the median and struck his car. Montgomery survived but lost his left leg below the knee. The driver had been awake for 22 of the previous 28 hours and had a documented history of HOS violations dating back two years.

C.H. Robinson, one of the largest freight brokers in North America, had tendered the load. At the time of selection, Caribe Transport II had a "Conditional" safety rating from FMCSA, was in Alert status for both Hours-of-Service Compliance and Unsafe Driving on the SMS BASIC measures, and had crash rates approximately three times the national average. All of this data was publicly available on the FMCSA SAFER website at the time Robinson selected the carrier. None of it required a paid subscription. None of it required a phone call. It was free, public, and one query away.

Robinson moved to dismiss on FAAAA preemption. The district court granted dismissal. The Seventh Circuit affirmed. Montgomery petitioned the Supreme Court, which granted cert and reversed.

The facts matter because they establish the baseline. Whatever "ordinary care" means in the broker context, it at minimum means looking at the free public data before tendering a load to a carrier whose driver later kills or maims someone. A broker who didn't even click into SAFER cannot claim to have exercised ordinary care.

The Legal Reasoning: Why FAAAA Doesn't Save You

The brokers' argument went like this: state negligence claims, by their nature, regulate the broker's "service" — the act of selecting and engaging carriers. State tort law that imposes a duty of care necessarily affects how brokers price loads, route them, and provide service. Therefore preempted.

The Court rejected this on two grounds.

First, the safety exception. The FAAAA explicitly carves out "the safety regulatory authority of a State with respect to motor vehicles." Congress understood that road safety is a quintessential state police power. Negligent carrier selection claims operate to ensure that motor vehicles on state roads are operated safely. They fall within the carveout. End of preemption.

Second, the "related to" inquiry. Even if the safety exception didn't apply, the Court held that state common-law duties of ordinary care are not "related to" broker services in the preemptive sense. They are background duties of general applicability that apply to every business in every industry. The fact that a duty happens to apply to brokers does not make it a state regulation of broker services.

Justice Barrett's opinion was emphatic on this point: the FAAAA was designed to deregulate the trucking and brokerage industries economically, not to grant them immunity from the basic legal duties every business owes to the public.

What "Ordinary Care" Means for Brokers

The Court did not write a compliance manual. It established a standard — ordinary care — and left it to lower courts to apply that standard to specific facts. But the contours are clear from the opinion and from the dozens of negligent-carrier-selection cases that have been brewing in lower courts for years.

Ordinary care means the broker took the steps a reasonable broker would have taken to verify carrier safety before tendering the load. At a minimum, that includes:

Authority verification. Confirm the carrier has active operating authority (USDOT plus MC number in Authorized status). Tendering to a carrier whose authority is revoked, suspended, or non-existent is per se unreasonable.

Insurance verification. Confirm the carrier carries the federally-required minimum BIPD insurance — $750,000 for general freight, higher for hazmat — and that the insurance is currently in force, not expired.

Safety rating check. Look up the carrier's FMCSA safety rating. Satisfactory is fine. Conditional requires documented justification. Unsatisfactory is indefensible.

SMS BASIC status check. Look at the publicly-available BASIC indicators. A carrier in Alert status on Unsafe Driving, HOS Compliance, Vehicle Maintenance, or Crash Indicator is a red flag that demands either rejection or documented justification.

Crash and inspection history. A 24-month rolling window of crashes and roadside inspections is publicly available. A pattern of recent crashes, especially fatal ones, is a fact a reasonable broker would consider.

Out-of-service rates. National average driver OOS is roughly 6.5%; vehicle OOS is roughly 20.7%. Carriers significantly above those averages have meaningful safety problems.

This is not exhaustive. It is the floor. Many brokers already do more — driver MVR pulls, equipment inspections, carrier financial checks, references. After Montgomery, "more" is increasingly the standard.

What "Ordinary Care" Means for Documentation

The Court was clear that ordinary care is a process, not an outcome. A broker who tenders a load to a carrier with a clean safety profile, and the carrier nonetheless causes a fatal accident, has not necessarily breached the duty. A broker who tenders to a carrier with a Conditional rating and three recent crashes, who never looked at the data, has breached the duty even if no accident ever occurs.

The legal proof of ordinary care is documentation. In every Montgomery-pattern case to come, the first discovery request will be: produce your carrier-selection records for this load. Produce your policies. Produce the screenshots, the FMCSA pulls, the email approvals, the supervisor sign-offs.

A broker who can produce a timestamped record showing the FMCSA data they reviewed, the policy they applied, the decision they made, and the basis for that decision is in a very strong position. A broker who can produce nothing is in a very weak one. The case will not turn on whether the carrier was actually safe; it will turn on whether the broker reasonably believed the carrier was safe based on the data available at the time of tender.

Why Shippers Should Be Worried Too

The broader implication of Montgomery — the one the trade press is undercovering — is what it means for shippers.

Shippers in the United States can be liable for negligent carrier selection under the same common-law theories Montgomery now applies to brokers. The theory existed long before Montgomery; what Montgomery did was confirm that FAAAA preemption is not a defense. If a shipper directly tenders a load to a carrier and that carrier causes an accident, the shipper can be sued for negligent selection on the same theory.

Even more important: shippers can be liable for negligent broker selection. Plaintiffs' attorneys have already begun arguing that a shipper who uses an under-vetted broker — one without policies, without documentation, without screening — has itself failed to exercise ordinary care in choosing a transportation intermediary. The chain of causation runs shipper → broker → carrier → crash. Each link is fair game in litigation.

The practical question for shippers is no longer "do my brokers handle this for me?" It is "do my brokers handle this in a way I can prove?" Shippers should ask every broker they tender to for documentation of the broker's carrier-selection process. They should consider auditing that process. They should consider requiring brokers to use a documented screening system (like, for example, DOTScreener) as a condition of doing business.

Some shippers are going further and screening carriers themselves before tendering to a broker. That's defensible. Trusting an unvetted broker without verification is increasingly not.

Nuclear Verdicts: The Economic Context

Why does this matter so much, so urgently? Two words: nuclear verdicts.

A "nuclear verdict" in trucking litigation is a jury verdict in excess of $10 million. They were once rare. They are now routine. The American Transportation Research Institute documented a 1,000% increase in average verdict size between 2010 and 2018. By 2023, verdicts in excess of $1 billion against trucking defendants had occurred multiple times. The trend has accelerated.

Plaintiffs' attorneys have studied trucking law for two decades. They know that the deepest pockets in a trucking case are rarely the carrier — small carriers often have only the $750,000 federal minimum in coverage. The brokers have more. The shippers have the most. The legal theory that gets you to the broker and the shipper is negligent selection. Montgomery cleared the last meaningful obstacle to that theory.

Every broker and shipper in America needs to assume that the next major accident on a load you touched is one phone call away from a $50 million demand letter.

The 9 Steps You Should Take By Friday

This is the operational checklist. Not theoretical. Things to do this week.

1. Write down your carrier-selection policy. It does not need to be long. It needs to exist on paper, be signed by an executive, and be applied consistently. State your minimum thresholds — operating authority, insurance, safety rating, BASIC status, crash history, OOS rates, authority age.

2. Train your team on the policy. Every load tender starts with the policy. No exceptions without written justification. No exceptions for big-customer loads, no exceptions for time-sensitive loads, no exceptions ever without sign-off.

3. Implement a screening system. Manual is fine if your volume is low. Automated is necessary if your volume is moderate or high. Either way, every tender produces a record showing what was checked, when, and what the result was.

4. Capture FMCSA data at the moment of tender. A screenshot of SAFER today is not the data the carrier had three months ago. Pull live data at the time of selection and store it. This is the "contemporaneous record" that wins cases.

5. Require carrier safety attestations. The broker can verify public data. Only the carrier can certify that this specific driver, on this specific load, is qualified, sober, rested, and operating a roadworthy vehicle. Get that in writing.

6. Maintain a Do Not Use list. Carriers with prior bad experiences, prior claims, fatal crashes, or any other deal-breaker get permanently flagged. Tendering to a carrier on your own DNU list is the single worst document a plaintiff's attorney can find in discovery.

7. Retain records for at least five years. Personal injury statutes of limitations vary by state. Some states have discovery rules that toll the limitations period for years after the accident. Five years is a safe floor. Seven is safer.

8. Get errors-and-omissions insurance reviewed. Talk to your broker. Make sure your policy covers negligent carrier selection claims. Many older policies have gaps.

9. If you are a shipper, audit your brokers. Ask to see their policies. Ask for sample documentation. Build broker-vetting into your procurement process. Consider requiring documented screening as a contractual requirement.

What This Is Not

A few things this ruling did not do, because the plaintiffs' bar will misstate them and the defense bar should be ready.

It did not make brokers automatically liable when a carrier they selected has a crash. The standard is ordinary care, not strict liability. A broker who exercised ordinary care and documented it is not liable just because a crash happened.

It did not impose new affirmative duties beyond what reasonable care has always required. The duty existed in state common law long before Montgomery. What Montgomery did was strip away the federal preemption defense.

It did not create a fiduciary relationship. Brokers are not insurers of carrier safety. They are not guarantors. They owe a duty of reasonable care — the same duty every business owes when its decisions affect public safety.

It did not preempt or override carrier liability. The carrier is still primarily responsible for the safety of its operations. Broker liability is in addition to, not in place of, carrier liability.

The Bottom Line

For thirty years, freight brokers have operated in a legal gray zone where some courts said they could be sued for bad carrier picks and other courts said the FAAAA forbade it. That gray zone is gone. Brokers can be sued. Shippers, by extension and by direct theory, can be sued. The defense is the same one that any business in any industry uses against any negligence claim: a documented, consistent, reasonable process applied at the moment of the decision.

If you have that process, Montgomery is a non-event for you. You will be sued anyway in the next decade — every broker of any size will — and your documentation will defeat the claim.

If you do not have that process, Montgomery is the most important Supreme Court ruling of your career. Build the process now. Build it before the next crash. Build it before the demand letter arrives. Build it Monday morning.