Brokers After Montgomery: Vet More, Control Less
On May 14, a unanimous Supreme Court held in Montgomery v. Caribe Transport II that state negligent-selection claims against freight brokers fall within the FAAAA’s safety exception and are not preempted. The Court did not define what “reasonable care” in carrier vetting looks like. Juries will.
Then a Dallas County jury returned a roughly $604 million verdict against C.H. Robinson in Peyton v. Lupus. As Husch Blackwell explains, the jury rejected negligent selection. It found the driver was the broker’s “borrowed employee,” pointing to GPS tracking and check-in requirements.
So the risk runs both ways. Vet too little and you face Montgomery exposure. Control too much and you face vicarious liability.
What we’d do now
- Write one carrier-selection standard and apply it the same way every time.
- Use tracking for visibility, not direction.
- Review indemnity, additional-insured, and re-brokering terms before renewal.
Captives and underwriters: ask insureds for the written standard, not just an approved-carrier list.
This post is general information, not legal advice. Sources are linked in the text.
