FAAAA preemption was the wall every freight broker stood behind. The Supreme Court took the wall down on May 14, 2026.
The case is Montgomery v. Caribe Transport II, LLC. The vote was nine to zero. The Federal Aviation Administration Authorization Act of 1994 — 49 U.S.C. § 14501(c)(1) — does not preempt state-law negligent-hiring claims against freight brokers when those claims involve motor vehicle safety. The safety exception at § 14501(c)(2)(A) preserves state regulatory authority over carrier selection. The defense brokers used to win summary judgment in negligence cases for the last decade no longer exists.
What actually happened
In 2017, a tractor-trailer driver pulled onto an Illinois shoulder. A driver employed by Caribe Transport II veered off the road and struck him. He lost his leg. He sued C.H. Robinson for negligently selecting Caribe Transport II, citing the carrier's conditional FMCSA safety rating at the time the load was booked — deficient in driver qualification, hours of service, and crash rates. The Seventh Circuit had previously sided with C.H. Robinson on FAAAA preemption grounds. The Supreme Court reversed.
The ruling resolved a four-way circuit split. Federal district and appellate courts had been splitting for years on whether the FAAAA safety exception covered negligent-hiring claims against brokers. The Supreme Court answered: it does. The decision was unanimous.
C.H. Robinson's public response — "disappointed but respect the decision" — is paired with active lobbying for Congressional clarification of FAAAA. The largest broker in America is in damage-control mode and pushing for legislative relief that may or may not arrive. Brokers cannot wait.
The line in the concurrence that matters
Justice Kavanaugh's concurrence quoted the broker industry's own trade association against itself. The Transportation Intermediaries Association filed an amicus brief in support of C.H. Robinson and argued that brokers "may not always (or even often) be in a good position to objectively assess the relative safety of different trucking companies." The Court took the language at face value. The industry said the quiet part out loud, and the highest court in the country recorded it in a concurrence.
This is the doctrinal foundation for the next decade of broker negligence litigation. Brokers cannot now argue they had no duty to assess carrier safety — their own trade association conceded the duty exists and that brokers are often not in a position to discharge it. The remediation is operational: build the position.
What changed for every broker in America
The new legal standard is ordinary care. The standard already applies to motor carriers and to most other businesses. It now applies to brokers as well.
Ordinary care does not mean perfection. It does not mean a broker is liable every time a carrier they hired is involved in a crash. It means the broker must be able to show that the carrier-selection process was reasonable, documented, and consistently applied. A broker who picked the cheapest available truck without checking the carrier's safety data and without documenting the rationale is in a different legal position than a broker who ran a structured vetting workflow that produced an imperfect outcome on a specific load. A broker with no documented vetting process does not get to argue they exercised care — they argue against the inference that they did not.
The plaintiff bar moved fast. The Fourth Circuit vacated a district court summary judgment and remanded a stayed broker case four days after the Montgomery decision. Cases that had been frozen on FAAAA preemption grounds are reactivating across multiple circuits. The litigation backlog is not theoretical — it is already moving.
The insurance picture
The insurance market gap is the part most operators underestimate. The federal broker surety bond is seventy-five thousand dollars and does not respond to tort liability. The federal liability insurance requirement for brokers is zero. The carrier minimum liability — set in 1980 — is seven hundred and fifty thousand dollars. Reported median trucking nuclear verdicts exceed thirty million dollars. The carrier minimum covers less than two percent of the median verdict. Nuclear verdicts above one million dollars are up two hundred and thirty-five percent since 2012. Commercial auto liability insurance has been unprofitable for fourteen consecutive years.
Contingent auto liability and truck broker liability premiums are rising. Underwriters are tightening qualification standards and adding more restrictive language to policies governing which motor carriers can be selected and how. Coverage is repricing for brokers who cannot demonstrate a systematic, documented vetting process. The repricing is less severe for brokers who can. The window between the ruling and the full repricing is the window where structured vetting becomes a competitive advantage and not a sunk cost.
What brokers should do this month
The work is not glamorous. It is operational. Five steps cover most of the exposure.
- Document the vetting workflow that already exists. Most brokerages have a vetting process in their dispatchers' heads. Get it on paper. Name the data sources checked, the thresholds applied, the disqualifying conditions, the override procedure. A written SOP that mirrors what the team already does is the fastest path to defensibility.
- Add periodic re-screening. Most brokerages vet a carrier at onboarding and then never look again. Carriers' SMS BASIC percentiles shift. Authority gets revoked. Insurance lapses. A monthly or quarterly re-screen against active carriers catches drift before it becomes a load on a crashed truck.
- Tighten the conditional and unsatisfactory rating exception. Brokers can still hire carriers with weak safety ratings, but the rationale needs to be documented. A note on the file — "shipper required this carrier," "no other capacity available," "carrier explained the conditional rating and showed remediation evidence" — is the difference between defensible and indefensible.
- Train the dispatch team on the documentation standard. The SOP only matters if it gets followed. Quarterly training, written policy acknowledgment, and a documentation discipline that produces a defensible audit trail are the operational layer that turns the SOP into a defense.
- Reconsider what you carry. Talk to your contingent auto liability underwriter this quarter, not next renewal. Ask what documentation they want to see. Ask what the post-Montgomery premium will look like with the documentation in place versus without. The conversation is happening across the insurance market right now.
A note on methodology
The legal community is warning brokerages to be careful about the vendors that will flood the market in the next sixty to ninety days with carrier-vetting "solutions" pitched as ordinary-care defenses. Benesch Law, writing about the post-Montgomery landscape, explicitly cautioned that brokers "should be thoughtful as they react to and evaluate the wide variety of products and services" promising to establish reasonable care.
The caution is correct. A scoring system invented in 2026 to address a ruling decided in 2026 has no methodological lineage to defend in court. A vetting framework grounded in adapted federal physical-security methodology is a different conversation.
The Zero Trust Freight Security Framework underpinning the consulting practice is adapted from FEMA 426 — the federal Reference Manual to Mitigate Potential Terrorist Attacks Against Buildings. The layered-defense model FEMA published for fixed-site security translates directly to the freight chain. Vetting, tracking setup, pickup, loading, in-transit, and delivery become the freight analogs of FEMA's perimeter, entry control, surveillance, defensive measures, and resilience layers. The provenance matters because it is harder for opposing counsel to challenge a methodology with a federal lineage than a proprietary system designed in reaction to litigation pressure.
This is not a claim that the framework eliminates liability. No framework does. It is a claim that a documented, methodology-grounded vetting process built on federally validated security architecture is the defensible posture the post-Montgomery standard demands.
Where this goes from here
The next twelve months will sort freight brokerages into two categories. The first category will have a documented vetting process, a re-screening cadence, an incident-response protocol, and an insurance underwriter conversation that produced a renewed policy on reasonable terms. The second category will have the same vetting practices they had on May 13, 2026, and will discover the gap when a crash and a complaint and an underwriter and a plaintiff's attorney all show up in the same month.
The Supreme Court did not create the exposure. The exposure was always there. The Court removed the federal shield that let brokers ignore it. The work now is operational, documentable, and finishable in a quarter.
If your brokerage needs help structuring a defensible vetting program — written SOPs, re-screening cadence, incident response, insurance-grade documentation — that is what our Fractional Risk Consulting practice is. Scoped engagements, named hours, no exclusivity, no long-term lock-in.
This article discusses the operational and insurance implications of Montgomery v. Caribe Transport II, LLC (decided May 14, 2026). Gold Bird Group is not a law firm and this is not legal advice. Brokerages should consult qualified legal counsel regarding compliance with the Montgomery holding, applicable state tort law, and any pending or anticipated litigation. The recommendations above reflect operational best-practice analysis, not legal opinion.