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Post-Montgomery duty of care

Broker Negligent Selection: What It Means After Montgomery

On May 14, 2026, the Supreme Court unanimously held that the FAAAA does not preempt state-law negligent-selection claims against freight brokers. The defense is no longer a federal preemption motion. It is the carrier-selection file you can put in front of a jury.

What Montgomery changed

For more than a decade brokers could move to dismiss negligent-selection claims on FAAAA preemption grounds, and a majority of federal circuits granted those motions. The case ended before discovery. The broker's carrier files were never opened. After Montgomery, that exit ramp is gone. Brokers will be defended on the merits, which means producing carrier-selection records in discovery — and the broker who shows up to deposition without a documented file loses.

The legal standard is ordinary care, not strict liability. The defense is a documented, consistent, reasonable process applied at the moment of every decision. That is exactly the kind of evidence a screening tool produces and a paper-based workflow does not.

The elements plaintiffs will prove

A negligent-selection claim has four moving parts, and discovery will attack each one.

  • Duty. Settled by Montgomery: a freight broker owes a duty of ordinary care when selecting a motor carrier.
  • Breach.The broker failed to take reasonable steps a comparable broker would have taken. The plaintiff will produce the carrier's public FMCSA record at the time of tender and argue that any reasonable broker who looked at it would not have selected this carrier.
  • Causation.The carrier's unsafe operation caused the harm. Public BASIC scores, prior crashes, and out-of-service rates all serve as expert-witness fodder here.
  • Damages. The crash, injuries, deaths, and economic loss. Nuclear verdicts are the norm — average commercial-trucking verdicts have grown 1,000% since 2010.

The structural defense

The strongest defensive posture is documentation at the moment of tender. Specifically:

  1. FMCSA snapshot captured live at the time of selection.
  2. Written carrier-selection policy applied consistently to this load.
  3. Risk-checklist results recorded with the load.
  4. Signed carrier safety attestation covering driver fitness, pre-trip inspection, and insurance currency.
  5. Broker rep sign-off with documented reasoning if anything required justification.
  6. Tamper-evident, hash-chained audit log so the file is admissible.

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Frequently asked questions

What is broker negligent selection?▾

Negligent selection is a state common-law claim that a freight broker failed to exercise ordinary care when choosing the motor carrier it tendered a load to. If the carrier causes a crash that injures someone, the broker can be sued for the choice itself — separately from the carrier's own liability — when a reasonable broker would have caught the safety problem before tender.

When can a freight broker be sued for negligent selection?▾

After Montgomery v. Caribe Transport (May 14, 2026), any broker that tendered a load can be sued in state court when the chosen carrier is involved in a serious crash and there are public FMCSA safety indicators the broker should have caught. The FAAAA preemption defense, which used to dismiss many of these cases at the motion-to-dismiss stage, is no longer available.

What is the FAAAA safety exception?▾

The Federal Aviation Administration Authorization Act of 1994 preempts state laws related to the price, route, or service of motor carriers and brokers, but it explicitly preserves the safety regulatory authority of a state with respect to motor vehicles. The Supreme Court held in Montgomery that negligent-selection claims fall inside that safety exception because they concern motor vehicle safety, so the FAAAA does not preempt them.

How can brokers avoid negligent selection claims?▾

Brokers cannot avoid being sued — every broker of any size will be sued in the next decade — but they can defend by producing a timestamped carrier-selection file for the load: the FMCSA data they reviewed at the moment of tender, the policy they applied, the decision they made, and the contemporaneous reasoning for that decision. A broker with that file wins. A broker who cannot produce one loses.

What documentation do brokers need post-Montgomery?▾

Per-load, at the time of tender: live FMCSA snapshot (authority, insurance, safety rating, SMS BASIC indicators, crash history, out-of-service rates), a written carrier-selection policy applied consistently, a signed carrier safety attestation, a broker rep sign-off with reasoning, and an immutable record of all of the above. DOTScreener produces this file automatically as a side effect of the screening workflow.

Does negligent selection apply to shippers too?▾

Yes — by direct theory if the shipper tenders to a carrier without a broker, and by negligent-broker-selection theory if the shipper used an under-vetted broker. Shippers never had the FAAAA preemption defense, so Montgomery's reasoning will accelerate shipper-side claims in the next 12 to 24 months.

Document your diligence on every load.

DOTScreener runs the checks in this article automatically and produces a timestamped, hash-chained record at the moment of tender.

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