Five months after the Supreme Court's unanimous Montgomery ruling, brokers are rebuilding carrier selection around documented safety processes. Roughly 90% of carriers have no FMCSA rating to point to, so the evidence now has to come from the fleet itself.
Key Takeaways
For years a freight broker facing a lawsuit over a carrier's crash had a reliable exit: argue that federal law preempted the claim and ask a judge to dismiss it before anyone examined how the carrier had been chosen. That door closed on May 14. Now, with the legal dust settling, the practical consequence is arriving at carriers' front doors. Brokers want proof that a fleet runs a real safety process, and a library of stored video does not count as proof on its own.
The case began when a Caribe Transport tractor-trailer hauling plastic pots veered off an Illinois highway and struck Shawn Montgomery, who had stopped on the shoulder. He lost a leg. C.H. Robinson had brokered the load. In Montgomery v. Caribe Transport II, the justices ruled unanimously that negligent hiring and selection claims against brokers fall within the Federal Aviation Administration Authorization Act's exception preserving state safety authority over motor vehicles. Claims about pricing, routing and cargo loss remain preempted, but carrier selection is a safety question. The ruling resolved a circuit split and overturned earlier appellate decisions that had shielded brokers.
The decision does not make brokers automatically liable. Writing in Bloomberg Law, transportation lawyer Ryan O'Connor noted that Justice Amy Coney Barrett's opinion placed carrier choice inside the safety exception, while Justice Brett Kavanaugh's concurrence stressed that brokers who vet reasonably can still win on the merits. Kavanaugh's framing was blunt: a broker "is not going to have a problem if it's asking the hard questions of the carrier." O'Connor expects broader discovery in state courts, more indemnity demands, tighter broker-carrier contracts and upward pressure on insurance premiums.
That insurance pressure lands on a market that has not had a break in a long time. A post-ruling analysis from Somerset Logistics, citing an insurance brokerage's 2026 transportation outlook, put commercial auto rate increases at 59 consecutive quarters. It also noted that broker contingent auto liability coverage was designed for a narrower exposure than the one brokers now face.
The obvious defense for a broker is to show the carrier had a clean federal record. The trouble is that most carriers have no federal grade at all. FreightVana CEO Shannon Breen told Transport Topics that about 90% of carriers are unrated by FMCSA, which oversees roughly 400,000 of them, and questioned how brokers are expected to know more about carriers than the government does. Greg Sanders, CEO of RDS Capacity Solutions, said about 30 states already allowed this kind of liability and the ruling opened it to all 50.
With no rating to rely on, vetting is moving to the data a carrier can produce. Joyce Brenny, CEO of Brenny Transportation, told Transport Topics her brokerage requires carriers to accept tracking while under dispatch and to send driver and truck photos before loading. Doug Cantriel, who leads North American transportation at Ford Motor Co., said shippers are "actually getting down to the driver level" in their own reviews. The Transportation Intermediaries Association has asked FMCSA to clarify which standards brokers should use.
Roadside data shows why brokers are nervous. During CVSA's 2026 International Roadcheck, inspectors placed 10,350 vehicles (about 19%) and 3,184 drivers out of service across 54,575 inspections, according to FleetOwner's summary of the results. Brake systems led vehicle violations with 3,379. On the driver side, a missing medical card topped the list at 1,072, followed by 929 hours-of-service violations and 620 drivers with no commercial driver's license. Every one of those is a public data point a plaintiff's lawyer can put in front of a jury and ask whether the broker looked.
"A carrier can have thousands of hours of video stored without having a meaningful safety process behind it." Lytx, writing in HDT Trucking Info
Video telematics vendors have been quick to frame the ruling as a selling point, and the sharpest version of the argument cuts against simply buying hardware. A sponsored piece from Lytx in HDT Trucking Info argued that brokers want to see what happens after a camera flags a risk: whether events are reviewed, whether drivers are coached, whether that coaching is documented, whether trends are tracked over time, and whether video sits alongside CSA scores and inspection history. "Coaching shouldn't depend on whether someone happens to notice a video clip," it said.
The company is also hosting a webinar on October 27 titled "Is Your Safety Record Broker Ready?", with panelists from Marsh, Baker Donelson and two carriers, according to a Lytx announcement. Shelley Bennett, its general counsel, said a strong safety record "is a competitive advantage." Commercial framing aside, the logic holds. A broker defending its choice in court needs a paper trail showing it asked, and a carrier that can hand over that trail quickly becomes the easier carrier to book.
Industry executives told Transport Topics the ruling mostly formalizes what careful brokers already did. Deen Albert of Grand Island Express said it "does formalize" carrier selection. For carriers, formal means producing the evidence on request. Fleets getting ahead of it are taking these steps:
The Court left the definition of reasonable care to future cases, which means the standard will be set one jury at a time in whichever state a crash occurs. Brokers will respond by asking harder questions of every carrier they book. The fleets that keep moving freight will be the ones that can answer with documents, not just footage.
Guide
With most carriers unrated, a broker-ready safety file has to be built by the fleet itself. This step-by-step framework covers the program structure and data infrastructure that make a safety record something you can hand over and defend.
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Guide
Brokers now want to see what happens after a camera flags a risk. These field-tested strategies from fleet professionals show how to turn safety data into documented improvements in driver behavior and performance.
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Guide
Brokers increasingly require tracking while a load is under dispatch. This checklist helps carriers judge whether a platform can share visibility and safety data cleanly enough to pass a post-Montgomery vetting review.
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FMCSA has pulled dozens of self-certified logging devices off its registered list. Enforcement on one batch began September 8, the next lands October 6, and the liability sits with the carrier, not the vendor.
