The Supreme Court handed down Montgomery v. Caribe Transport II on May 14. Nine to zero. Justice Amy Coney Barrett wrote the opinion. No dissent. The F4A preemption shield that freight brokers relied on to avoid state tort liability for negligent carrier selection? Gone.
A broker can now be sued in every state where it arranges transportation. The carrier it selects, the safety record it ignores, the data it declines to check: all of it is discoverable, admissible, and presentable to a jury.
That’s the legal reality. But the operational question matters more: can your risk management prove you did the work?
What the Court Actually Said
Barrett’s opinion is short (eight pages), and the logic is direct. The FAAAA preempts state laws related to a broker’s “price, route, or service.” But it contains a safety exception preserving state authority “with respect to motor vehicles.” The court asked one question: Does a negligent carrier selection claim concern motor vehicles? Yes. Obviously. The trucks that will transport the goods.
Every counterargument failed. C.H. Robinson argued the safety exception would swallow the preemption clause. Barrett said no; the exception applies only to claims involving motor vehicle safety. State laws governing pricing that have nothing to do with safety remain preempted. The clause still does work.
Justice Brett Kavanaugh’s concurrence is where the practical guidance lives. He acknowledged the case was closer than the majority opinion suggests. But he wrote the line that will appear in every brief filed in this area for the next decade: there’s no meaningful federal safety regulation of brokers’ carrier selection practices. FMCSA requires brokers to select a federally registered carrier but doesn’t impose safety standards on how they make that selection. If Congress preempted state tort law while also failing to impose any federal safety requirements, brokers would operate in a “black hole with no meaningful safety-related regulation.” Kavanaugh wasn’t willing to read that result into the statute.
Then the closer. Truck safety is life and death. In 2022, roughly 500,000 reported truck accidents resulted in about 5,000 deaths and 114,000 injuries. If brokers can be held liable for disregarding poor safety records, Kavanaugh wrote, “they have a strong incentive to do business only with safe and reliable motor carriers.”
The SCOTUS decision will not only impact brokers but shippers too – shippers using carriers with scale, away from marginal capacity. Also, shippers who have been using unvetted carriers or sub-scale brokers to squeeze rates need to review those relationships now. Some shippers may push some of their “direct” carrier business to brokers to reduce liability.
What “Standard of Care” Means Now
The legal standard is ordinary care. A jury will ask whether the broker exercised reasonable care in selecting the carrier. Did you check the safety record? Was the FMCSA data available to you? Did the data show high crash rates, conditional ratings, high out-of-service percentages, or prior enforcement actions? Did you have a documented process? Or did you book the cheapest truck and move on?
Here’s the problem with the current system: 94% of federally authorized carriers don’t have an FMCSA safety rating at all. The vast majority have never received a full federal safety audit. So, the satisfactory/unsatisfactory determination that the entire qualification chain historically depended on? Most carriers don’t have one. And as Justice Kavanaugh noted, the FMCSA isn’t a certification agency. The only time it makes a determination on safety fitness is when it says a company is unsatisfactory.
So, what counts as “reasonable”? Checking FMCSA authority and confirming insurance aren’t going to hold up much longer. The data that is publicly available (CSA scores, inspection histories, crash indicators, BASIC percentiles, out-of-service rates) and other data not available publicly is extensive. Plaintiffs’ attorneys know it. Courts know it. Juries understand it. If that data showed warning signs and you never reviewed it, that absence is itself evidence.
The standard is moving fast. You would think most large and sophisticated brokers already conduct real safety analysis before tendering freight. However, that is a myth – If it was doing it, they would have presented evidence to SCOTUS and not faced a resounding defeat.
Since the decision, it has become imperative to review carrier inspection history, monitor unsafe driving indicators, analyze out-of-service rates, examine crash trends, implement fraud-prevention controls, and continuously monitor carrier status changes. Those practices establish what is operationally realistic and commercially achievable. If some portions of the industry already do this, it becomes difficult for another broker to argue that reviewing public safety data is unreasonable.
That’s how standards of care work in every industry. What begins as a best practice becomes an expected practice. Expected practice becomes the benchmark against which negligence is measured.
The Insurance Math Is About to Change
Within days of the ruling, TD Cowen published an analyst report estimating that the insurance premium gap between carriers and brokers will narrow significantly. Right now, for every $1 a carrier spends on insurance, a broker spends about 10 cents. That gap is closing. One brokerage already reported renewal discussions, citing a 300% increase. TIA President and CEO Chris Burroughs said the number he’s hearing is 5x.
The capacity impact is real too. TD Cowen estimates 6-7% of trucking capacity is made up of “conditional” carriers (those with unresolved FMCSA safety issues). Brokers looking to reduce liability exposure will start dropping them. That freight has to go somewhere, or it doesn’t move.
Brokers that can demonstrate documented, data-driven carrier selection processes will receive better insurance terms. The ones that can’t will absorb the full cost of the new risk environment. Underwriters will review the vetting methodology, monitoring protocols, exception handling, and audit trail. If those things exist, the broker is in a defensible position. If they don’t, the premium reflects it.
What Rigorous Safety Related Risk Management Looks Like After Montgomery
Risk management in freight has always mattered. After Montgomery, it’s the difference between a defensible position and an indefensible one. And “rigorous” means something specific.
It means continuous. Point-in-time carrier checks capture a snapshot. That snapshot is stale the moment you take it. A carrier can deteriorate from satisfactory to dangerous over months, and if nobody is watching between checks, the broker holding that load during the decline is the one holding the liability. You need to be watching authority status, insurance status, safety scores, and violation patterns across your carrier base every day. Not once at onboarding.
It means adaptive. The rules change. Regulatory standards shift. New data sources become available. The metrics and standards you use to evaluate carriers have to be reviewed and updated continuously. A vetting policy you wrote two years ago and never touched won’t hold up when a plaintiff’s attorney asks whether you kept up with industry practice.
It means data faithful. That means rigorous data fidelity, rigorous policy adaptation, and rigorous tools. If you’re making carrier selection decisions on stale, self-reported, or incomplete data, your risk management has a hole in it.
And it means documented. Every vetting decision, every data point reviewed, every exception flagged, every override explained. Timestamped. Stored. Retrievable. When the subpoena arrives three years from now, asking what you knew about the carrier you dispatched on the load that ended in a fatality, you want a file. If you have one, you can defend your decision. If you don’t, the absence is the evidence.
Where Technology Fits (and Where It Doesn’t)
Technology doesn’t replace risk judgment. It makes risk judgment possible at scale at affordable cost for SMB brokers and shippers.
A 10-person brokerage can’t manually review CSA scores, inspection histories, crash data, insurance status, and authority changes across 500 carriers every day. But a platform that continuously monitors carrier data, flags deterioration as it happens, and documents every check in a retrievable audit trail can. That’s the difference between a broker that can prove its standard of care and one that can’t.
EKA has been built by a company whose leadership team has deep experience in operating your business. Equally Importantly. some team members have in-depth experience in building and delivering best- practices carrier safety related risk management solutions.
EKA Omni-TMS™ was built for this kind of operational infrastructure. EKA RMX is being built to deliver holistic and real-time measurement and management of driver and carrier safety risk. Real-time telematics through On-Time™ gives you geofenced, objective location data you control (not driver-reported positions you can’t verify). WAMS watches every workflow in real time and flags exceptions: missed deadlines, documentation gaps, and behavioral patterns that manual monitoring misses at scale. Risk and Compliance Guardrails give you the controls and the paper trail that post-Montgomery litigation will demand.
We’ve written extensively about the infrastructure required for this kind of continuous risk management. Our piece on how carrier qualification systems are fundamentally broken explains why point-in-time checks fail. The Dalilah’s Law analysis covers the regulatory pressure tightening CDL eligibility and foreign dispatch restrictions. And the AI infrastructure argument explains why this kind of continuous monitoring can only work on a platform architecturally designed for it, not a legacy system with AI bolted on.
The well-run risk management companies have tried to do most of this, but they’ve served some medium to large enterprises. The mid-market broker with 15 people and 500 carriers? They’ve been on their own. After Montgomery, they can’t be. They need the same infrastructure. And that infrastructure needs to be affordable, fast to deploy, and purpose-built for the business they actually run.
What To Do Right Now
If you’re a freight broker operating in the United States today, here’s the short list of what to do right now.
Document your carrier selection process. If you don’t have one, build one. If you have one that checks whether the carrier has active authority and a pulse, rewrite it. It won’t hold up.
Check the safety data. FMCSA’s SAFER system, SMS BASIC percentile scores, crash rates, out-of-service rates, and inspection history are all public and free. If a carrier’s data shows high risk and you book them anyway, a plaintiff’s attorney will ask you why. Have an answer.
Keep records. The vetting you did, the data you reviewed, the criteria you applied, the decision you made. Timestamp it. Store it. Make it retrievable.
Talk to your insurance broker. Today. Ask whether your current coverage responds to a negligent-hiring tort claim. Ask what your exposure looks like after Montgomery. If you’re an insurance broker writing freight accounts, you should already be drafting the coverage review letter.
And build (or buy) the monitoring infrastructure that lets you do this continuously. Because the first wave of post-Montgomery negligent-hiring suits are coming. The dockets are ready, and lawsuits are beginning to be filed. The carrier safety data is public. Your carrier selection history is discoverable. The inspection records showing which carriers you habitually dispatched, and what those carriers’ safety profiles looked like at the time of dispatch, are all federal records.
The Bottom Line
Montgomery didn’t create a new obligation. It removed the shield that was blocking an old one. Negligent hiring is a tort theory that has existed for generations. The Restatement (Second) of Torts, Section 411, imposes a duty of reasonable care in employing a contractor for work carrying a risk of physical harm. Barrett cited it in the opinion.
The court told the freight industry something it should have already known. If you pick the carrier, you own the choice. Document it. Defend it. Or answer for it.
Safety is no longer a binary question (satisfactory or not). It’s continuous risk management applied to the specific business you run. And the brokers who can prove they did that work, rigorously and adaptively, will be the ones who survive what comes next.
If you want to see what continuous carrier monitoring, documented risk management, and real-time compliance infrastructure look like inside a freight platform, talk to EKA Solutions. Because in a post-Montgomery world, the question every jury will ask is simple: Did you do the work? You need a platform that proves you did.