For two decades, the working assumption in commercial trucking litigation was that the FAAAA preemption clause shielded freight brokers from state-law negligent hiring and selection claims. That assumption survived a long string of circuit splits, varied trial-court rulings, and several denials of cert. It did not survive the Supreme Court's May 2026 ruling in Montgomery v. Caribe Transport II, LLC.
The Court held unanimously that the FAAAA's preemption clause, which bars state laws "related to a price, route, or service" of a broker, does not preempt state-law claims that a broker negligently selected an unsafe motor carrier. The Court relied on the safety-regulation savings clause and read it as Congress's signal that broker selection of unsafe carriers is squarely within state-law police-power authority.
The practical effect for plaintiff trucking practice is large. Brokers are typically the only solvent and adequately insured target when the carrier is a thinly capitalized owner-operator with the federal minimum $750,000 limit. Until Montgomery, the broker was almost always dismissed on preemption before discovery. Now the broker stays in.
What plaintiffs now need to prove
The doctrinal test the Court left in place is straightforward state-law negligence. Plaintiffs must show that the broker owed a duty of reasonable care in selecting the carrier, breached that duty, and that the breach was a proximate cause of the crash. The breach element is where 2026 broker litigation is concentrating.
Useful factual showings include:
- The carrier's SAFER snapshot at the time of load tender, including BASIC percentile scores in unsafe driving, hours-of-service, and vehicle maintenance
- The carrier's MCS-150 update history, with attention to authority age and gaps in operation
- Prior crash and inspection history, including any out-of-service violations
- The carrier's insurance posture, especially policy changes, lapses, or insurer downgrades in the 90 days before the crash
- Broker internal communications about the load, the carrier, and any reluctance from internal compliance staff
The broker defense in 2026 cases is shaping around the carrier-selection process itself. Brokers that can show a documented, automated SAFER lookup at the moment of tender, a clear pass/fail threshold, and audit records of how the load was assigned have a real defense. Brokers that ran on relationships and habit do not.
Discovery is now about the broker's tech stack
The most productive discovery in post-Montgomery cases targets the broker's transportation management system. Most TMS platforms now log every SAFER pull, RMIS check, and carrier-onboarding decision. The interrogatories and document requests that produce useful evidence are specific:
- Full TMS audit log for the load at issue, including all data lookups performed before tender
- The broker's documented carrier-approval criteria as in effect on the date of tender, with version history
- Internal Slack, Teams, or email communications referencing the carrier in the 12 months before the crash
- Any third-party safety monitoring service the broker subscribes to, including Carrier411, RMIS, or Highway, with full subscription history
- Underwriter or insurer audits of the broker's selection practices
Brokers commonly object that TMS data is proprietary, that the lookup logs are not maintained in the ordinary course, or that producing a year of internal communications about a single carrier is disproportionate. Those objections are losing in 2026 trial courts. The proportionality analysis turns on the fact that broker liability is now squarely in play, which makes the carrier-selection record directly relevant.
The ELD spoliation track
Brokerage liability does not eliminate the carrier-side ELD discovery work. ELD data still drives the hours-of-service theory against the driver and the motor carrier, and 2026 enforcement changes have made spoliation arguments more attractive.
FMCSA revoked a meaningful slice of ELD models in June 2026 after sustained reports of widespread carrier cheating, including a category of devices that allowed drivers to back-edit log records without an audit trail. For motor carriers running on those revoked devices, the plaintiff's spoliation argument writes itself: a carrier that knew its ELDs were on FMCSA's review list and continued to use them, and now cannot produce reliable HOS records for the crash window, is hard to defend.
The carrier's response is usually that the FMCSA-mandated 60-day replacement window applied prospectively. That argument does not address pre-revocation records, which the carrier had an independent duty to preserve once litigation was reasonably anticipated. Preservation letters at intake should specifically name the ELD vendor and model, and should request the underlying raw event data, not just the printed HOS summary.
The broker insurance picture
The post-Montgomery underwriting cycle has been disruptive. Contingent-cargo and broker-E&O markets reacted within weeks, with several carriers reducing limits or pulling out of the segment entirely. Coverage disputes are starting to surface in early-stage Montgomery cases over whether a negligent-selection claim is a bodily-injury trigger under the broker's policy or falls within an E&O policy with much lower limits.
Plaintiff counsel should be checking both. A broker that placed a single tender into a $250,000 E&O policy is not a target worth taking to trial. A broker whose CGL responds to negligent-selection claims, or who has umbrella coverage, is a different conversation. Either way, the coverage analysis is now part of the early case workup, not a settlement-phase afterthought.
What to expect through the rest of 2026
Three follow-on questions will define the next year of trucking litigation. First, courts will sort out the duty standard. Some jurisdictions are likely to adopt a reasonable-broker standard tied to industry safety screens; others may push toward something closer to a statutory duty drawn from FMCSA regulations. Second, brokers and shippers will continue to fight about who actually selected the carrier, particularly in dedicated-route arrangements and managed-transportation programs. Third, the freight industry's response, including consolidated carrier-vetting platforms and expanded use of safety scoring tools, will shape what counts as reasonable selection going forward.
For practitioners running commercial trucking and motorcycle cases, the immediate operational shift is in case selection. Cases that would have been declined as judgment-proof in 2025 are now viable if a properly insured broker is in the chain of custody. The intake question has moved from "who was driving" to "who tendered the load." That single change is reshaping the economics of the practice, and is already showing up in recent settlement reporting from the larger plaintiff firms. Coordinated work with intake teams to capture this data at the first call is now a meaningful competitive advantage.