Loyd v. Salazar

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

GREGORY LOYD, )

)

Plaintiff, )

)

v. ) Case No. CIV-17-977-D

)

PAUL SALAZAR d/b/a RAS TRUCKING, )

et al., )

)

Defendants. )

ORDER

Before the Court is Defendant AG Source, Inc.’s Motion to Dismiss Plaintiff’s

Amended Complaint [Doc. No. 44], filed pursuant to Fed. R. Civ. P. 12(b)(6).1 Plaintiff

has filed a timely response [Doc. No. 45] and Defendant has replied [Doc. No. 46]. Both

parties have filed notices of supplemental authority [Doc. Nos. 49, 50, 51, 52].2 The

Motion is fully briefed and at issue.

Plaintiff brings a common law negligence action to recover damages for personal

injuries suffered in a motor vehicle accident. Defendant AG Source, Inc. (“AGS”) is a

freight broker who allegedly selected an unsafe motor carrier, Defendant Paul Salazar d/b/a

RAS Trucking, to transport property, and the carrier’s employee allegedly caused the

1 In granting Plaintiff leave to amend his pleading to add AG Source, Inc. as a defendant,

the Court expressly deferred a decision regarding the sufficiency of the Amended Complaint for

an appropriate motion under Rule 12(b)(6). See 7/9/18 Order [Doc. No. 32] at 4.

2 Although these Notices are authorized by LCvR7.1(m), Plaintiff included in his Notices

additional legal argument. To the extent Plaintiff’s filings constitute unauthorized supplemental

briefs, they are disregarded; only the information permitted by LCvR7.1(m) will be considered.

trucking accident that injured Plaintiff. AGS asserts that two federal statutes preempt any

negligence claim based on its brokerage services: the Interstate Commerce Commission

Termination Act (ICCTA), 49 U.S.C. § 14501(b); and the Federal Aviation Administration

Authorization Act (FAAAA), 49 U.S.C. § 14501(c).

Standard of Decision

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F. 3d 1242, 1247

(10th Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. By its Motion, AGS does not challenge the

sufficiency of Plaintiff’s factual allegations to state a negligence claim but, instead, raises

a legal challenge based on the doctrine of federal preemption. The legal sufficiency of a

complaint is properly decided under Rule 12(b)(6), and federal preemption is a legal issue.

See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (Rule 12(b)(6)); Scarlett

v. Air Methods Corp., 922 F.3d 1053, 1061 (10th Cir. 2019) (preemption). “The party

claiming preemption bears the burden of showing with specificity that Congress intended

to preempt state law.” Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 489

n.4 (10th Cir. 1998) (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984)); see

Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1143 (10th Cir. 2010).

Plaintiff’s Allegations

The Amended Complaint states that Plaintiff (an Oklahoma citizen) was severely

injured in a highway accident involving a semitrailer-tractor truck operated by Defendant

Robiet Leon Carrazana (a Texas citizen) while employed by Defendant Salazar (a Texas

citizen), whose sole proprietorship was a licensed motor carrier, U.S. DOT No. 2354708.

According to Plaintiff, “Carrazana was transporting freight brokered to Salazar by [AGS],”

and AGS (a Kansas citizen) is a licensed freight broker, U.S. DOT No. 228140 (MC No.

413830). See Am. Compl. [Doc. No. 33] ¶¶ 4, 8. “Prior to [AGS] brokering the load to

Salazar, the U.S. Department of Transportation assigned Salazar a ‘Conditional’ rating as

a motor carrier due to serious violations, including hours of service violations, record

retention violations, and operating without required authority.” Id. ¶ 9.

Plaintiff asserts as his “Fourth Cause of Action” a claim against AGS of “Negligent

Hiring of a Motor Carrier/Negligent Brokering.” Id. at 4 (ECF page numbering). Plaintiff

alleges that AGS “is a freight broker whose enterprise involves selecting motor carriers as

an integral part of its business” and it “owed a duty to the motoring public to select a

competent motor carrier to haul the load Carrazana was transporting at the time of the

accident.” Id. ¶¶ 24-25. According to Plaintiff, AGS “knew or should have known that

Salazar was an unsafe motor carrier, and that Salazar utilized incompetent, unsafe, and

careless drivers – such as Carrazana – and Salazar regularly entrusted its vehicles to such

drivers.” Id. ¶ 26. Specifically, AGS “negligently, recklessly, and/or intentionally ignored

Salazar’s repeated unlawful and unsafe conduct, including – but, not limited to – hours of

service violations and operating commercial motor vehicles unsafely.” Id. ¶ 27. Plaintiff

claims that AGS’s “negligent hiring of Salazar by entrusting the freight to Salazar

constitutes gross negligence or amounts to the wanton and reckless disregard of the rights

and safety of Loyd, entitling him to both compensatory and exemplary damages.” Id. ¶ 28.

Discussion

By its Motion, AGS raises a claim of “express preemption, which occurs when the

language of the federal statute reveals an express congressional intent to preempt state

law.” See Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir.

1998); see also US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010). The

parties’ arguments regarding this claim present three legal issues: 1) Whether Plaintiff’s

negligent brokering claim is preempted by the ITTCA, § 14501(b); 2) Whether the claim

is preempted by the FAAAA, § 14501(c)(1); and if so, 3) Whether the claim is saved from

preemption by a provision excepting state safety laws, § 14501(c)(2).

A. ITTCA Preemption

As part of a change in federal regulatory policy toward the transportation industry,

Congress passed statutes that deregulated trucking and prevented states from imposing

their own regulations. As pertinent here, the ITTCA includes the following provision:

(b) Freight forwarders and brokers.--

(1) General rule. -- Subject to paragraph (2) of this subsection [regarding

Hawaii], no State or political subdivision thereof and no intrastate agency

. . . shall enact or enforce any law, rule, regulation, standard, or other

provision having the force and effect of law relating to intrastate rates,

intrastate routes, or intrastate services of any freight forwarder or broker.

49 U.S.C. § 14501(b)(1). AGS asserts that this provision protects it from state common

law claims that are based on its performance of services as a freight broker.

According to the Supreme Court, “[t]he [preemption] question, at bottom, is one of

statutory intent, and we accordingly begin with the language employed by Congress and

the assumption that the ordinary meaning of that language accurately expresses the

legislative purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)

(internal quotations omitted). By its terms, the ITTCA preempts state laws “relating to

intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.”

Id. (emphasis added). AGS’s preemption argument regarding this statute necessarily

requires that the Court either disregard this language and extend it to interstate services of

a freight broker, or find that AGS was performing intrastate services when it brokered the

freight shipment in this case. See Reply Br. at 2-3.

Upon consideration, the Court finds that AGS’s first argument is contrary to the

Supreme Court’s teaching: “Where, as in this case, Congress has superseded state [laws]

by statute, our task is to identify the domain expressly preempted. To do so, we first focus

on the statutory language, which necessarily contains the best evidence of Congress’

preemptive intent.” See Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013)

(internal quotations omitted). Unlike other provisions of 49 U.S.C. § 14501 – a statute

regarding “Federal authority over intrastate transportation” – § 14501(b)(1) expressly

limits its reach to “intrastate” rates, routes, and services. The Court views this limitation

as a statement of congressional intent to preempt state laws relating only to intrastate

services of a broker under § 14501(b)(1).3

3 Other parts of § 14501 are not so limited. For example, the provision applicable to motor

carriers of passengers preempts state laws relating to “scheduling of interstate or intrastate

Turning to AGS’s intrastate services argument, the Court finds that it is unsupported

by the allegations of the Amended Complaint. Plaintiff has not included in his pleading

any facts that would identify the nature of AGS’s brokerage services as either intrastate or

interstate in nature. Plaintiff argues that they necessarily were interstate because the motor

carrier, Salazar (acting through Carrazana), was transporting a freight shipment between

two states. See Pl.’s Resp. Br. at 2, 4.4 AGS urges the Court to focus on the brokerage

services themselves, and although not well articulated, AGS seems to argue that the

services were performed within the state where AGS was located. See Reply Br. at 2. AGS

presents no authority for any presumption or rule that a broker’s services are locally

performed. According to pertinent facts shown by the Amended Complaint (and not

disputed by any defendant), AGS and the motor carrier selected for the shipment, Salazar,

were located in different states, thus suggesting an interstate brokering transaction.

In short, the Court finds that AGS has failed to carry its burden to show that

Plaintiff’s negligence claim against it is preempted by § 14501(b).

B. FAAAA Preemption

Congress enacted the FAAAA to protect freight shipments from state regulations as

follows:

(c) Motor carriers of property. (1) General rule. – Except as provided in

paragraphs (2) and (3), a State . . . may not enact or enforce a law, regulation,

transportation” and “the authority to provide intrastate or interstate charter bus transportation.”

See id. § 14501(a)(1)(A), (C).

4 Plaintiff admits the fact of an interstate freight shipment is not shown by the Amended

Complaint, but he contends the omission was inadvertent and could be cured by an amendment.

See Pl.’s Resp. Br. at 4 n.1.

or other provision having the force and effect of law related to a price, route,

or service of any motor carrier . . . or any motor private carrier, broker, or

freight forwarder with respect to the transportation of property.

(2) Matters not covered. – Paragraph (1) –

(A) shall not restrict the safety regulatory authority of a State with respect

to motor vehicles, the authority of a State to impose highway route

controls or limitations based on the size or weight of the motor vehicle or

the hazardous nature of the cargo, or the authority of a State to regulate

motor carriers with regard to minimum amounts of financial responsibility

relating to insurance requirements and self-insurance authorization.

49 U.S.C. § 14501(c). Due to parallel language in the statutes, courts follow caselaw

interpreting the Airline Deregulation Act (ADA), 49 U.S.C. § 1305(a)(1), to determine the

scope of the FAAAA. See Rowe v. N.H. Motor Trans. Ass’n, 552 U.S. 364, 370 (2008);

Dan’s City Used Cars, 569 U.S. at 260.

Congress’ use of words “related to” a price, route, or service expresses a broad

preemptive purpose “and embraces state laws ‘having a connection with or reference to’

carrier [or broker] ‘rates, routes, or services,’ whether directly or indirectly.” See Dan’s

City Used Cars, 569 U.S. at 260 (quoting Rowe, 552 U.S. at 370 (internal quotation

omitted)). “At the same time, the breadth of the words ‘related to’ does not mean the sky

is the limit.” Id. The Supreme Court has “cautioned that § 14501(c)(1) does not preempt

state laws affecting carrier prices, routes, and services in only a tenuous, remote, or

peripheral manner.” Id. at 261 (internal quotation omitted).

Federal district courts are sharply divided on how to apply these guiding principles

to personal injury claims alleging negligence by brokers in selecting motor carriers for the

transportation of property.5 There is no question that a common law negligence claim

embodies a state law that may be preempted under proper circumstances. See Northwest,

Inc. v. Ginsberg, 572 U.S. 273, 281-82 (2014) (“[S]tate common-law rules fall comfortably

within the language of the ADA pre-emption provision” because it “applies to state ‘law[s],

regulation[s], or other provision[s] having the force and effect of law,’” and “[i]t is routine

to call common-law rules ‘provisions.’”) (quoting 49 U.S.C. § 41713(b)(1)). The difficulty

is “draw[ing] a line between laws that are significantly ‘related to’ rates, routes, or services,

even indirectly, and thus are preempted, and those that have ‘only a tenuous, remote, or

peripheral’ connection to rates, routes, or services, and thus are not preempted.” See Dilts

v. Penske Logistics, LLC, 769 F.3d 637 643 (9th Cir. 2014) (citing Rowe, 552 U.S. at 371).

Some district courts have simply refused to hold that personal injury claims are

preempted, largely relying on ADA cases to justify such a rule. See, e.g., Scott v. Milosevic,

372 F. Supp. 3d 758, 769 (N.D. Iowa 2019) (citing Charas v. Trans World Airlines, Inc.,

160 F.3d 1259, 1266 (9th Cir. 1998) (en banc) (Congress enacted the ADA to insulate the

airline industry from state economic regulation; “[i]t did not intend to immunize the airlines

from liability for personal injuries caused by their tortious conduct”)); Hodges v. Delta

Airlines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) (en banc) (“[N]either the ADA nor its

legislative history indicates that Congress intended to displace the application of state tort

5 No federal appellate court has yet decided this question, but the issue may be presented

in pending appeals. See Creagan v. Wal-Mart Trans., LLC, 354 F. Supp. 3d 808 (N.D. Ohio 2018),

appeal filed, No. 19-3562 (6th Cir. June 12, 2019); Miller v. C.H. Robinsons Worldwide, Inc., Case

No. 3:17-cv-00408-MMD-WGC (D. Nev. Nov. 14, 2018), appeal filed, No. 19-15981 (9th Cir.

May 7, 2019).

law to personal physical injury inflicted by aircraft operations, or that Congress even

considered such preemption.”) (footnote omitted)). This rule is supported by broad

statements of opinion that, in enacting the ADA, “Congress did not intend to preempt

passengers’ run-of-the-mill personal injury claims.” Charas, 160 F.3d at 1261.6

In Charas, the conclusion flowed from narrowly construing the term “service” of

an air carrier to encompass “such things as the frequency and scheduling of transportation”

but to exclude passenger services such as “the dispensing of food and drinks, flight

attendant assistance, or the like.” Id. at 1265-66.7 Other opinions reflect a more nuanced

approach, defining the term “services” of air carriers broadly to “include items such as

ticketing, boarding procedures, provision of food and drink, and baggage handling” but

concluding that “enforcement of tort remedies for personal physical injury ordinarily has

no ‘express reference’ to services as defined above.” See Hodges, 44 F.3d at 339 (citing

6 Some of the district court decisions cited by Plaintiff were made by courts located within

the Ninth Circuit and follow Charas or a subsequent decision, Dilts. See Nyswaner v. C.H.

Robinson Worldwide Inc., 353 F. Supp. 3d 892 (D. Ariz. 2019); Factory Mut. Ins. Co. v. One

Source Logistics, LLC, Case No. LA CV16-06385 JAK, 2017 WL 2608867 (C.D. Cal. May 5,

2017); Montes de Oca v. El Paso-Los Angeles Limousine Express, Inc., No. CV-14-9230 RSWL,

2015 WL 1250139 (C.D. Cal. March 17, 2015). Plaintiff cites a case outside the Ninth Circuit,

Hentz v. Kimball Trans., Inc., Case No. 6:18-cv-1327-Orl-31GJK, 2018 WL 5961732 (M.D. Fla.

Nov. 14, 2018), which concerned a different issue (complete preemption) but also cited Charas

and Hodges. Other district courts adopting this view have also followed ADA caselaw, or have

followed FAAAA cases citing ADA caselaw, without analysis. See Owens v. Anthony, No. 2-11-

0033, 2011 WL 6056409, * 3 (M.D. Tenn. Dec. 6, 2011); Mann v. C.H. Robinson Worldwide, Inc.,

No. 7:16-cv-00102, 2017 WL 3191516, *7-8 (W.D. Va. July 27, 2017); Gilley v. C.H. Robinson

Worldwide, Inc., Civ. Action No. 1:18-00536, 2019 WL 1410902, *5 (S.D. W.Va. March 28,

2019).

7 The Third Circuit has endorsed “[t]he approach espoused . . . in Charas.” See Taj Mahal

Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998).

Morales, 504 U.S. at 388).8 Many court opinions regarding the preemptive reach of the

ADA are influenced by a provision requiring air carriers to maintain insurance coverage

for personal injury claims. See, e.g., Hodges, 44 F.3d at 338; Taj Mahal Travel, Inc. v.

Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998); Branche v. Airtran Airways, Inc.,

342 F.3d 1248, 1258 (11th Cir. 2003); see also Bower v. Egyptair Airlines, Co., 731 F.3d

85, 95 (1st Cir. 2013): Scott, 372 F. Supp. 3d at 770. A similar provision exists under the

FAAAA for motor carriers and freight forwarders, but not brokers. See 49 U.S.C.

§ 13906(a)(1), (b)(1)-(2), (c)(3). Therefore, under the circumstances of this case, the Court

finds little guidance in these opinions, which address neither the “services” of brokers nor

Congress’ intent regarding brokers.

More persuasive to the Court are cases that focus on the language of § 14501(c)(1)

and the factual allegations of a plaintiff’s negligence claim. With few exceptions, the

conclusions reached by district courts conducting an express preemption analysis are that

the “services” of a freight broker involve arranging for a motor carrier to transport property

and that a state-law negligent brokering claim is directly “related to” the broker’s

performance of this service with respect to the transportation of property.9 See, e.g., Finley

8 The First, Second, Fourth, Seventh and Eleventh Circuits have adopted the Hodges

approach. See Bower v. Egyptair Airlines Co., 731 F.3d 85, 94-95 (1st Cir. 2013); Air Transp.

Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008); Smith v. Comair, Inc., 134 F.3d

254, 259 (4th Cir. 1998); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d

1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir.

2003).

9 See 49 U.S.C. § 13102(2) (“broker” means a person “selling, providing, or arranging for,

transportation by motor carrier for compensation”), § 13102(23) (“transportation” includes “a

motor vehicle . . . or equipment of any kind related to the movement of passengers or property”

v. Dyer, No. 3:18-CV-78-DMB-JMV, 2018 WL 5284616 (N.D. Miss. Oct. 24, 2018)

(negligent hiring and entrustment claims against freight broker “derive from a broker’s

service” and so “are ‘related to’ such service” and preempted by § 14501(c)(1));10 Creagan

v. Wal-Mart Trans., LLC, 354 F. Supp. 3d 808, 813 (N.D. Ohio 2018), appeal filed, No. 19-

3562 (6th Cir. June 12, 2019) (“because the negligent hiring claim seeks to enforce a duty

of care related to how Kirsch (the broker) arranged for a motor carrier to transport the

shipment (the service), the claim falls squarely within the preemption of [§ 14501(c)(1)]”);

Miller v. C.H. Robinson Worldwide, Inc., Case No. 3:17-cv-00508-MMD-WGC, 2018 WL

5981840, *4 (D. Nev. Nov. 14, 2018), appeal filed, No. 19-15981 (9th Cir. May 7, 2019)

(negligent brokering claim is preempted under § 14501(c)(1) because imposing liability

“would have a significant impact on [freight broker’s] services as a broker;” the claim “sets

out to reshape the level of service a broker must provide in selecting a motor carrier to

transport property”); Krauss v. IRIS USA, Inc., Civil Action No. 17-778, 2018 WL

2063839, *5 (E.D. Pa. May 3, 2018) (negligent hiring allegations against freight broker

“go to the core of what it means to be a careful broker” so the claim is preempted by

§ 14501(c)(1)); Volkova v. C.H. Robinson Co., No. 16 C 1883, 2018 WL 741441 (N.D. Ill.

Feb. 7, 2018) (negligent hiring claim “directly implicates how [freight broker] performs its

and “services related to that movement, including arranging for, receipt, delivery, . . . and

interchange of passengers and property”).

10 Plaintiff relies on Finley as supplemental authority in his favor due to the district court’s

treatment of the exception of § 14501(c)(2), discussed infra. See Pl.’s Notice [Doc. No. 49].

central function of hiring motor carriers, which involves the transportation of property”

and is preempted by § 14501(c)(1)).

In this case, Plaintiff claims that AGS is liable for his injuries based on its “negligent

hiring of Salazar” as the motor carrier for the freight shipment that Carrazana was hauling.

See Am. Compl. ¶ 28. Plaintiff specifically alleges AGS was a freight broker that

“select[ed] motor carriers as an integral part of its business,” that it “owed a duty to the

motoring public to select a competent motor carrier to haul the load Carrazana was

transporting at the time of the accident,” and that it breached this duty by selecting an

unsafe motor carrier (Salazar) to transport the shipment. See Am. Compl. ¶¶ 24-27. The

Court finds that Plaintiff’s allegations directly relate to the services AGS provided as a

broker in the transportation of property. Thus, Plaintiff’s claim is expressly preempted by

§ 14501(c)(1) of the FAAAA.

C. FAAAA’s Safety Exception

A state law may be saved from preemption if it falls within an exception provided

by § 14501(c)(2), quoted infra. As pertinent here, this exception protects a state’s “safety

regulatory authority . . . with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2). Plaintiff

argues that this provision should be read broadly to encompass a negligent brokering claim

where, as here, it would serve to protect the motoring public from unsafe motor carriers.

Plaintiff’s position has some support among district courts that have considered the

safety exception of § 14501(c)(2), but most of these courts have simply made a conclusory

finding without statutory analysis, such as, “the negligence issues presented here involve

highway safety.” See Owens, 2011 WL 6056409 at 4; see also Morales, 2015 WL 9274068

at *3 (“agree[ing] with Owens that negligence claims like the ones here are part of the

states’ safety regulatory authority”); Mann, 2017 WL 3191516 at 7 (even if negligent hiring

claim “had a sufficient impact on the price, route, or service of a broker to satisfy

Paragraph (1), it would not be preempted because it would fall within the general ‘safety

regulatory’ exception of Paragraph 2(A)”); Gilley, 2019 WL 1410902 at *5 (same). Some

courts reaching an opposite conclusion have also given cursory treatment to the issue. See

Volkova, 2018 WL 741441 at *4 (finding plaintiff’s reliance on § 14501(c)(2) was not

persuasive and quoting the provision with emphasis on “safety regulatory authority of a

State with respect to motor vehicles”); Creagan, 354 F. Supp. 3d at 814 (concluding

negligent hiring claim “is not within the safety regulatory authority of the state” because it

“seeks to impose a duty on the service of the broker rather than regulate motor vehicles”).

Even district court decisions that do articulate an analysis have reached different

conclusions. Compare Miller, 2018 WL 5981840 at *4-5, with Finley, 2018 WL 5284616

at *6.

A number exceptions are listed in § 14501(c), after the preemption provision of

subsection (c)(1), that describe matters reserved for state authority. Subsection (c)(3)

speaks to “state standard transportation practices,” such as uniform cargo liability rules and

bills of lading, “with respect to the intrastate transportation of property by motor carriers”

if they meet certain requirements, including being “no more burdensome than” federal

regulations covering the same subject matter and “only appl[ying] to a carrier upon request

of such carrier.” See 15 U.S.C. § 14501(c)(3)(B). Subsection (c)(2) enumerates particular

matters, stating categorically that subsection (c)(1) “does not apply to the intrastate

transportation of household goods” or state laws “relating to the price of for-hire motor

vehicle transportation by a tow truck.” See 49 U.S.C. § 14501(c)(2)(B) and (C). The

provision at issue in this case appears in subsection (c)(2)(A), which declares that

subsection (c)(1) “shall not restrict . . . the authority of the State” in three areas: safety

regulations with respect to motor vehicles; highway route controls or limitations based on

the size or weight of the motor vehicle or hazardous nature of the cargo; and motor carrier

regulations regarding minimum amounts of financial responsibility relating to insurance.

Thus, Congress provides in § 14501(c) a set of carefully drafted exceptions to the broad

preemptive sweep of subsection (c)(1).

In contrast to specific exceptions, Plaintiff proposes that “safety regulatory authority

of a State with respect to motor vehicles” should encompass a negligent brokering claim,

like his, that implicates highway safety. In the Court’s view, Plaintiff’s proposal is contrary

to Congress’ intent in providing specific exceptions to federal preemption; such a broad

reading would allow the exception to swallow the rule of preemption related to brokers’

services.

Congress expressly limited the exception by specifying that protected safety

regulations are ones “with respect to motor vehicles.” The phrase “with respect to” signals

that an exempt regulation must concern motor vehicles, and narrows the scope of the

exception. See Dan’s City Used Cars, 569 U.S. at 261 (FAAAA limited the parallel ADA

preemption provision by adding “with respect to transportation of property”). “The term

‘motor vehicle’ means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn

by mechanical power and used on a highway in transportation . . . .” See 49 U.S.C.

§ 13102(16). Assuming that a common law negligence claim can be considered a safety

regulation with respect to motor vehicles, a negligent hiring or brokering claim – even one

alleging that a broker unreasonably selected an unsafe motor carrier – only indirectly

concerns the safety of the motor vehicles owned or operated by the motor carrier.

In reaching this conclusion, the Court is mindful of the Supreme Court’s teaching

in City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 440 (2002),

that “[a] congressional decision to enact both a general policy that furthers a particular goal

[of deregulation] and a specific exception that might tend against that goal does not

invariably call for the narrowest possible construction of the exception.” In Ours Garage,

the Supreme Court addressed the safety exception of § 14501(c)(2)(A) in a different

context; the question presented was whether the exception preserved local as well state

safety regulations. The Court found that the expressed intent of the exception is “that the

preemption rule of § 14501(c)(1) ‘not restrict’ the existing ‘safety regulatory authority of a

State” and that it “seeks to save from preemption state power in a field which the States

have traditionally occupied.” Id. at 438 (emphasis in original) (internal quotation omitted).

In finding that the exception covered local regulations, the Supreme Court observed that

the field of safety is one “where States have traditionally allowed localities to address local

concerns,” and reasoned as follows:

Congress’ clear purpose in § 14501(c)(2)(A) is to ensure that its preemption

of States’ economic authority over motor carriers of property, § 14501(c)(1),

“not restrict” the preexisting and traditional state police power over safety.

That power typically includes the choice to delegate the State's “safety

regulatory authority” to localities. Forcing a State to refrain from doing so

would effectively “restrict” that very authority.

Id. at 439-40.

Following Ours Garage, district courts have disagreed on whether a common law

negligence claim falls within a state’s traditional police power over safety. See Finley,

2018 WL 5284616 at *6 (common law liability is traditional exercise of police power);

Miller, 2018 WL 5981840 at *4 (private action does not enforce state police power). This

Court is willing to assume that a state-law tort claim imposing a common law duty on a

freight broker might be viewed as an exercise of a state’s police power and, under proper

circumstances, a negligent brokering claim might be viewed as safety regulation. The

Court finds, however, that reading the safety exception to include a negligence claim like

the one asserted here – alleging that AGS overlooked Salazar’s “conditional” rating as a

motor carrier and selected an unsafe motor carrier that used incompetent or careless drivers

and entrusted its vehicles to such drivers (see Am. Compl. ¶¶ 9, 24-26) – would be an

unwarranted extension of the exception to encompass a safety regulation concerning motor

carriers rather than one concerning motor vehicles.

For these reasons, the Court concludes that Plaintiff’s negligent brokering claim

against AGS is not saved from federal preemption by the safety regulatory exception of

§ 14501(c)(2)(A).

IT IS THEREFORE ORDERED that Defendant AG Source, Inc.’s Motion to

Dismiss Plaintiff’s Amended Complaint [Doc. No. 44] is GRANTED. The action against

Defendant AG Source, Inc. is dismissed, and the case shall proceed against only

Defendants Raul Salazar d/b/a RAS Trucking and Robiet Leon Carrazana.

IT IS SO ORDERED this 20° day of September, 2019.

Md Q.Oyhit

TIMOTHY D. DeGIUSTI

Chief United States District Judge

17