The Document Plaintiff's Counsel Asks for First (And Most Brokers Don't Have)

A broker in Memphis tendered a flatbed load to MC-1247893 — DOT-3567102, 14 months in authority, Unsafe Driving BASIC at the 74th percentile, one prior accident in the SAFER system marked "not preventable." The load ran. The driver rear-ended a passenger vehicle at highway speed. One fatality.

In discovery, plaintiff's counsel sent document requests. Item two on the list: "Produce all written policies, procedures, or guidelines governing the selection, qualification, and approval of motor carriers, including any thresholds, criteria, or scoring systems used to evaluate carrier safety."

The broker's response: "Responsive documents do not exist."

Four words. Worth more to the plaintiff than everything else in the file combined. The case settled for $2.1 million. The vetting itself might have been defensible. The missing policy made it a negotiating loss instead of a trial fight.

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What a Written Carrier Selection Policy Actually Is

Not an SOP binder. Not a compliance checklist buried in your TMS. Not the carrier packet template your ops manager made in 2019.

A carrier selection policy is a short document — one to three pages — that defines in writing the standards your company applies before putting a carrier on a load. It answers the question every plaintiff's attorney will ask: "What were your criteria, and how do you know this carrier met them?"

The criteria themselves matter less than the existence of the document and its consistent application. I've seen brokers who cut carriers at 18 months of authority and brokers who book carriers at 10 months with extra scrutiny. Both are defensible positions. What isn't defensible is having no documented threshold at all — because then plaintiff's counsel defines your standard in front of a jury. They'll define it as whatever you should have done and didn't. That's not a place you want to be.

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What the Policy Should Actually Cover

Authority age. What's your baseline minimum? What conditions let you go lower, and who has to sign off on an exception? "It depends" is not a policy. If your threshold is 12 months with a clean SAFER history and no prior OOS orders, write that. If you'll go to 9 months for a carrier with a strong operating fleet and a direct reference from a shipper you trust, write that exception procedure too. The flexibility is fine — the undocumented flexibility is what gets you.

OOS rates. The national vehicle OOS rate runs around 20%, driver OOS around 5.5%. Most experienced brokers I know won't touch a carrier with vehicle OOS above 30%. But I've never seen that written in a formal policy at a brokerage that didn't have outside legal counsel push them toward it. Write the number down. It can be whatever your operation decides is reasonable — but it needs to exist before the accident, not after.

BASIC thresholds. Which BASICs trigger mandatory secondary review? Which are automatic disqualifications? The Unsafe Driving BASIC and the Crash Indicator BASIC are the two that will come up in litigation every time. Have a number. Write it in the policy. The number doesn't need to match mine or anyone else's. It needs to be a considered choice that your company made and can explain.

Safety ratings. The vast majority of carriers are "Not Rated" — FMCSA hasn't audited them. That's not a problem if your policy says what additional steps you take for a Not Rated carrier. Will you book Conditional rated carriers? Under what conditions, and what extra documentation do you require? Conditional with extra insurance verification and supervisor sign-off is defensible. Conditional with nothing extra because you didn't notice is not.

Insurance minimums above the regulatory floor. 49 CFR § 387.9 sets the federal minimum at $750,000 BIPD for most property carriers. That number hasn't moved since 1985. A wrongful death case today can hit $2 million before anyone mentions punitive damages, and nuclear verdicts against brokers are now a real liability category post-Montgomery. Your policy should state whether you require coverage above the regulatory minimum and for which load types — high-value freight, tanker, reefer over a certain cargo value. If you require $1 million on every load, write it. If you require $1.5 million on loads over $200K cargo value, write that.

Documentation requirements. Certificate of insurance, carrier packet, dispatch contact, driver name if you collect it, equipment number if the shipper requires it. Whatever you collect before a load moves, your policy should list it. Not to be bureaucratic — because when you're in discovery, you need to show that you followed a defined process and collected defined documents, not that you grabbed whatever happened to be in the email thread.

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Why Absence Is Worse Than a Flawed Policy

This surprises brokers when I explain it: a written policy with a flaw is almost always better than no written policy.

If your policy says Conditional rated carriers require supervisor approval and additional insurance verification, and you got both, you can defend that decision. You followed your written standard. A jury weighs whether the standard was reasonable. That's a trial, which you might win.

If you have no written policy, plaintiff's counsel brings in an expert witness who describes the "industry standard" of carrier vetting. Your attorney says you applied reasonable care. Their expert says a reasonable broker would have required X, Y, and Z, and you didn't. You have no document to compare it to. The jury decides who's more credible. That's usually a settlement with bad numbers.

There's a second thing the written policy does that doesn't get enough credit: it forces consistency across your team. When your new hire in Dallas can open a policy document and see that carriers under 12 months of authority require regional director sign-off, they don't have to guess what "extra scrutiny" means. There's a rule. They follow it. That operational consistency is exactly what "reasonable care" looks like post-Montgomery — across every dispatcher, every lane, every time zone.

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What Montgomery Changed About This

Montgomery v. Caribe Transport II, LLC came down from the Supreme Court in May 2026. Unanimous. Justice Barrett writing. The FAAAA does not preempt state-law negligent selection claims against freight brokers. The 7th and 11th Circuits had been a preemption shield for years. Gone now.

What that means practically: every state court is now a potential venue for a negligent selection case against your brokerage. The standard of care varies by state, but most of these cases come down to whether you acted as a reasonable broker would act. Courts look at industry custom, expert testimony, and your own internal practices.

Your internal written policy, consistently applied, is the most powerful evidence of reasonable care you can produce. It's a document that predates the accident, reflects a considered judgment your company made before anything went wrong, and shows a jury that you had a standard and followed it. The absence of one is an invitation for plaintiff's counsel to write your standard for you, retroactively, in the light most favorable to a $4 million verdict.

49 CFR § 371.3 requires brokers to keep records of each transaction — the carrier name, DOT number, shipment details, compensation. That's the regulatory floor. The fact that federal regulations require you to document who you chose implies you should have a systematic method for making that choice. A written carrier selection policy is the upstream document that explains your transaction records.

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The Version History Trap

One more thing that surfaces in discovery: plaintiff's counsel will ask for every version of your written policy going back three to five years, plus any amendments made after the accident.

If you write a policy tomorrow and backdate it to last year, that's a problem. If you update your OOS threshold after a claim to look tighter than you actually were, that's worse — that's potentially obstruction.

Write the policy now, date it honestly, review it quarterly. Keep version history. When you tighten your Unsafe Driving BASIC threshold from the 80th percentile to the 70th percentile because the data warrants it, document that change and why you made it. That version trail shows continuous good-faith effort to refine your standard. It's hard to attack in court. It also shows a jury that you care about this beyond just staying out of trouble.

One more thing: review the policy after any carrier incident, even one that doesn't turn into a claim. If a carrier you used had a close call, ask whether your criteria caught the right signals. Update the policy if they didn't. Date the update. That habit of review is what separates a policy that's a liability shield from one that's an actual operational tool.

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How I Document This

For the policy itself: I keep a signed, dated copy in the company's document management system with version numbers. The quarterly review date is on the calendar, not in my head. Every change — even small ones, like adjusting which documentation I require for reefer carriers — gets logged with a short note explaining the reasoning.

For each load: after I select a carrier, I document which criteria they met, which fields I pulled from SAFER and at what timestamp, and any exceptions or waivers. If I book a carrier at 11 months of authority when my policy says 12 months, I document who approved the exception, the specific facts that justified it — strong FMCSA inspection history, directly verified through L&I, no OOS events, personal reference from a broker I know — and I attach the record to the load.

Exceptions aren't the problem. Undocumented exceptions are disasters.

The carrier selection file doesn't need to be elaborate. A timestamped note in your TMS that shows which version of your policy was in effect, which SAFER fields you checked and when, and what the carrier's metrics were at the moment of selection — that's enough. It shows a human being applied a known standard to a specific carrier before the load moved.

That's exactly what you need a jury to hear.

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— Mason Lavallet

Founder, DOTScreener.com