Amicus Curiae Brief — Shawn Montgomery, Petitioner v. Caribe Transport II, LLC, et al.
Supreme Court briefJan 21, 2026
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No. 24-1238
In the Supreme Court of the United States
SHAWN MONTGOMERY,
Petitioner,
v.
CARIBE TRANSPORT II, LLC, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR AMICUS CURIAE
TOKIO MARINE HOUSTON CASUALTY
COMPANY
IN SUPPORT OF RESPONDENTS
Withers Bergman LLP
CONTE CICALA*
*Counsel of Record
ALEXANDRA
ROGOFF-GREEN
909 Montgomery Street
Suite 300
San Francisco, CA 94133
415-872-3234
conte.cicala@
withersworldwide.com
alexandra.rogoff-green@
withersworldwide.com
CHAYA F. WEINBERGBRODT
JOVANA CRNCEVIC
430 Park Avenue
New York, NY 10022
212-848-9800
chaya.weinberg-brodt@
withersworldwide.com
jovana.crncevic@
withersworldwide.com
Counsel for Amicus Curiae
Tokio Marine Houston Casualty Company
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT..................................... 2
ARGUMENT ............................................................... 6
I.
Absent Preemption, Unpredictability of
Risk and a Non-Uniform Legal Framework
Threaten to Degrade, and Can Eventually
Destroy, Insurability in the Freight
Brokerage Market............................................... 6
II.
Absent a Clear and Uniform Rule of
Preemption, Courts Have Created a
Fractured Legal Landscape for Brokers .......... 10
III. Uniformity of Liability Rules Should Be
the
Standard
in
Interstate
and
International Transportation ........................... 21
IV. Failure to Enforce Preemption Discourages
Broker
Initiative
and
Innovation,
Increases Risks, and Erodes Safety ................. 27
CONCLUSION.......................................................... 30
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Badar v. Swissport USA, Inc.,
53 F.4th 739 (2d Cir. 2022) ................................... 26
Cal. Trucking Ass’n v. Su,
903 F.3d 953 (9th Cir. 2018),
cert. denied, 139 S. Ct. 1331 (2019) ....................... 18
Carter v. Khayrullaev,
No. 20-cv-00670-AGF, 2022 WL 9922419
(E.D. Mo. Oct. 17, 2022) ........................................ 20
Carton v. Gen. Motor Acceptance Corp.,
611 F.3d 451 (8th Cir. 2010) ................................. 24
Castle v. Hayes Freight Lines,
348 U.S. 61 (1954) ........................................... 11, 16
Ciotola v. Star Transportation & Trucking, LLC,
481 F.Supp.3d 375 (M.D. Pa. 2020) ...................... 17
Dagi v. Delta Airlines, Inc.,
961 F.3d 22 (1st Cir. 2020) .................................... 26
Dan’s City Used Cars, Inc. v. Pelkey,
569 U.S. 251 (2013).......................................... 10, 18
Dixon v. Stone Truck Line, Inc.,
19-CV-000945-JCH-GJF, 2021 WL 5493076
(D.N.M. Nov. 23, 2021) .......................................... 20
Ehrlich v. Am. Airlines, Inc.,
360 F.3d 366 (2d Cir. 2004) ................................... 25
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155 (1999)................................................ 25
Eli Lilly Co. v. Air Exp. Int’l USA, Inc.,
615 F.3d 1305 (11th Cir. 2010) ............................. 26
iii
Estate of Wray v. Kennedy Brothers Logis., Inc.,
No. 22-CV-70-FL, 2022 WL 16550315
(E.D. N.C. Oct. 31, 2022) ....................................... 20
Flagler v. Budget Rent a Car Sys.,
538 F.Supp.2d 557 (E.D.N.Y. 2008) ...................... 24
Garcia v. Vanguard Car Rental USA, Inc.,
540 F.3d 1242 (11th Cir. 2008) ............................. 24
Gerred v. FedEx Ground Packaging Sys., Inc.,
No. 21-cv-1026-P, 2021 WL 4398033
(N.D. Tex. Sept. 23, 2021) ..................................... 21
Gilley v. C.H. Robinson Worldwide, Inc.,
Civ. No. 18-00536, 2019 WL 1410902
(S.D. W.Va. March 28, 2019) ................................. 20
Gillum v. High Standard, LLC,
No. SA-19-CV-1378-XR, 2020 WL 444371
(W.D. Tex. Jan. 27, 2020) ...................................... 19
Great Lakes Ins. SE v.
Raiders Retreat Realty Co., LLC,
601 U.S. 65 (2024) ................................................. 22
Green v. Toyota Motor CreditCorp,
605 F.Supp.2d 430 (E.D.N.Y. 2009) ...................... 24
Hagen v. U-Haul Co. of Tennessee,
613 F.Supp.2d 986 (W.D. Tenn. 2009) .................. 24
Jones v. C.H. Robinson Worldwide, Inc.,
558 F.Supp.2d 630 (W.D. Va. 2008) ...................... 19
Krauss v. Iris USA, Inc.,
No. 17-778, 2018 WL 2063839
(E.D. Pa. May 3, 2018) ........................................... 18
Layton v. Russell,
No. 13-CV-325, 2014 WL 2949370
(W.D. Mich. June 30, 2014) ................................... 24
iv
Lindsey v. Am. Airline, Inc.,
No. 24-CV-01440-RS, 2024 WL 3471197
(N.D. Cal. July 18, 2024) ....................................... 26
Mann v. C.H. Robinson Worldwide, Inc.,
No. 16-cv-00102, 16-cv-00104, 16-cv-00140,
2017 WL 3191516 (W.D. Va. July 27, 2017) ..................19
Mata v. Allupick, Inc.,
No. 21-cv-00865-ACA, 2022 WL 1541294
(N.D. Ala. May 16, 2022) ....................................... 20
McLaine v. McLeod,
661 S.E.2d 695 (Ga. Ct. App. 2008) ...................... 19
Montgomery v. Caribe Transp. II, LLC,
124 F.4th 1053 (7th Cir. 2025),
cert. granted, 222 L.Ed.2d 1241 (Oct. 3, 2025) ..... 20
Nyswaner v.
C.H. Robinson Worldwide Incorporated,
353 F.Supp.3d 892 (D. Ariz. 2019) ........................ 20
Ortiz v. Ben Strong Trucking, Inc.,
624 F. Supp. 3d 567 (2022) .............................. 17, 20
Rein v. Cab East LLC,
No. 08 Civ. 2899(PAC), 2009 U.S. Dist.
LEXIS 52617, 2009 WL 1748905 (S.D.N.Y.
Jun. 22, 2009) ........................................................ 24
Rockne v. J.B. Hunt Transport, Inc.,
No. 24-CV-00065-H-BU, 2025 WL 2181707
(N.D. Tex. July 17, 2025) .................................. 16-17
Rowe v. New Hampshire Motor Transp. Ass’n,
552 U.S. 364 (2008)................................................ 10
Schramm v. Foster,
341 F.Supp.2d 536 ................................................. 19
v
Smith v.
Spring Hill Integrated Logistics Mgmt., Inc.,
No. 1:04 CV 13, 2005 WL 2469689
(N.D. Ohio Oct. 6, 2005) ........................................ 19
Sperl v. C.H. Robinson,
408 Ill.App.3d 1051 (2011) ......................... 17, 19-20
Taylor v. Sethmar Transp.,
No. 19-cv-00770, 2021 WL 4751419
(S.D. W.Va. Oct. 12, 2021) ..................................... 20
Wardingley v. Ecovyst Catalyst Technologies, LLC,
No. 22–CV-115-PPS-JEM, 2022 WL 16714139
(N.D. Ind. Nov. 4, 2022) ......................................... 20
White v. Scotty’s Contracting & Stone, LLC,
No. 21-CV-00161-GNS, 2022 WL 4588417
(W.D. Ky. Sept. 29, 2022) ...................................... 20
Ye v. Global Sunrise, Inc.,
2020 18-CV-019621, 2020 WL 1042047
(N.D. Ill. Mar. 4, 2020) .......................................... 19
Ye v. GlobalTranz Enters., Inc.,
74 F.4th 453 (7th Cir. 2023) .................................. 22
Statutes
49 U.S.C. § 113 .......................................................... 10
49 U.S.C. § 311(c) (1946) .......................................... 13
49 U.S.C. § 13902(a) ............................................ 10-11
49 U.S.C. § 13904 ...................................................... 12
49 U.S.C. § 13904(a)(2) ............................................. 12
49 U.S.C. § 13904(d) ................................................... 3
49 U.S.C. § 13906(a)(1) ............................................. 12
49 U.S.C. § 13906(b) ................................................. 13
vi
49 U.S.C. § 14501(a)(1) ............................................. 22
49 U.S.C. § 14501(b)(1) ............................................. 22
49 U.S.C. § 14501(c)(1) ......................................... 4, 22
49 U.S.C. § 14501(c)(2)(A) .................................. 13, 28
49 U.S.C. § 30106 .................................................. 3, 23
49 U.S.C. § 31144(a)(1) ............................................. 11
Fixing America’s Surface Transportation Act,
Pub. L. 114-95, 129 Stat. 1312 (2015),
§ 5223(d) ........................................................... 11, 12
Regulations
49 C.F.R. § 1.87(a)..................................................... 11
49 C.F.R. § 371.2 ................................................... 3, 12
49 C.F.R. § 371.3 ....................................................... 12
49 C.F.R. § 371.3(a)(2) ................................................ 3
49 C.F.R. § 385.13 ..................................................... 11
49 CFR Part 365 ....................................................... 11
Other Authorities
4 I.C.C. 358; 1988 I.C.C. LEXIS 255 (1988) ............. 13
Matt Brannon, Home Insurance Rates to Rise
8% in 2025, After a 20% Increase in the Last
Two Years, INSURIFY (2025),
https://insurify.com/homeownersinsurance/report/home-insurance-priceprojections ................................................................ 8
Br. of Amicus Curiae American Truckers
United in Support of Petitioner ............................ 15
Br. of the Institute for Safer Trucking as
Amicus Curiae in Support of Petitioner ......... 15, 16
vii
Patrick L. Brockett ET AL., Underwriting &
Ambiguity: an Economic Analysis, J. OF INS.
ISSUES, 1999,
https://www.researchgate.net/publication/227
651267_Underwriting_and_Ambiguity_An_Ec
onomic_Analysis .............................................. 6, 7, 8
Congressional Budget Office, Climate Change,
Disaster Risk, and Homeowner’s Insurance
(Aug. 2024),
https://www.cbo.gov/publication/60674 .................. 7
Convention for the Unification of Certain Rules
for International Carriage by Air, May 28,
1999, S. Treaty Doc. No. 106–45 (2000) ............ 3, 25
Convention for the Unification of Certain Rules
Relating to International Transportation by
Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S.
No. 876 ................................................................... 25
Simon Deitz and Oliver Walker, Ambiguity and
Insurance, Capital Requirements and
Premiums, Journal of Risk and Insurance
(2016),
https://www.lse.ac.uk/granthaminstitute/wpcontent/uploads/2012/11/Working-Paper-97Dietz-and-Walker.pdf .............................................. 6
Breck Dumas, California Insurance Crisis: Here
Are the Carriers That Have Fled or Reduced
Coverage in the State, Fox Business (Jan. 10,
2025),
https://www.foxbusiness.com/lifestyle/californi
a-insurance-crisis-here-carriers-have-fledreduced-coverage-state ............................................ 8
viii
JPMorgan Chase & Co., Insurance: Weathering
the Storm of Inflation, Climate Change and
Market-Distorting State Regulation (2025),
https://www.jpmorgan.com/content/dam/jpm/c
ib/documents/Weathering_the_storm.pdf ............ 7-8
Nitin Kumar, White Paper, Exploring a New
Dimension of Predictability in Insurance,
Infosys (2018),
https://www.infosys.com/industries/insurance/
white-papers/Documents/predictabilityinsurance.pdf ........................................................... 6
Glenn Patton, Insurance, Regulatory Changes
for Freight Brokers and Forwarders, CIFFA
(Apr. 4, 2024),
https://www.ciffa.com/ffo/insuranceregulatory-changes-for-freight-brokers-andforwarders/ ............................................................... 9
Kyoung-son Song, Market Hardens in NonOwned Auto and Contingent Auto Liability,
INSURANCE INSIDER US (Nov. 26, 2025),
https://www.insuranceinsiderus.com/article/2f
n46nwnrs7wyk28mcirk/lines-ofbusiness/commercial-lines/market-hardens-innon-owned-auto-and-contingent-auto-liability9, 17, 29
1
INTEREST OF AMICUS CURIAE1
Tokio Marine Houston Casualty Company
(“HCC”) is a leading global insurer in the business of
providing insurance for transportation providers,
including freight brokers for interstate transport of
freight.
Insurance for interstate freight brokers requires
predictable risk and a single nationwide liability
standard. Brokers do not control motor carrier
operations, or drivers, or the routes carriers take, or
the states carriers travel through to arrive at their
destination. Without a predictable and uniform legal
regime, premiums rise, coverage amounts are
reduced, and certain states or routes—or indeed the
business as a whole—may lose coverage altogether.
HCC has a strong interest in reinstating, and
preserving, a logical, uniform risk market for freight
brokerage.
Brokers not only require a clear and uniform
federal standard to guide their conduct, but they are
also entitled to one under the Federal Aviation
Administration Authorization Act (the “FAAAA”).
The federal government has exclusive authority to
determine which motor carriers are authorized to use
the national roadways for interstate transport of
freight. Any efforts by the states to interfere with
this exclusive authority, and to force federallylicensed carriers from the national roadways, are
preempted.
1 No counsel for a party authored this brief in whole or in part.
No person or entity, other than the amicus curiae, or its
counsel, made a monetary contribution to its preparation or
submission.
2
This preemption must logically extend to a state
that seeks to use its tort system to impose common
law liability, such as for “negligent selection,” on a
broker who refers business to a federally-licensed
carrier. Otherwise, states will do indirectly what
they are preempted from doing directly, leading to a
complex patchwork of legal regimes that may disrupt
interstate routes and commerce. Subjecting brokers
to over 50 separate standards, based on ad-hoc, afterthe-fact determinations by the tort system, is directly
contrary to the uniform system Congress envisioned
in enacting the FAAAA and its preemption
provisions.
Absent preemption, brokers are faced with
conflicting, inconsistent, and unpredictable duties
when carriers transport cargo across various states,
each with a different set of standards and rules.
This is not fair to brokers who are ready and willing
to follow clear rules. Similarly, it
discourages
insurers who want to support this essential
component of interstate commerce by offering
insurance products based on reasonably predictable
risks. Insurers are in the business of risk, but they
are not in the business of chaos.
HCC therefore appears as amicus curiae in
support of Respondents.
SUMMARY OF ARGUMENT
Insurance underwriting relies on an insurer’s
ability to predict and calculate the risks of expected
future losses. Ambiguity of expected loss frequency
or loss severity leads to premium increases beyond
expected costs. Where predictability and uniformity
are absent, insurance costs may increase beyond a
market’s ability to bear them, especially in a
3
market—such as the freight brokerage market—
where brokers (and carriers) typically operate at low
margins. A nationwide, uniform legal framework is
therefore necessary to operate a national (and
international) transportation system.
Recognizing this precept, the Constitution
established a uniform nationwide body of law for
maritime transportation. As new modes of carriage
emerged, such as rail, air and motor, the same
wisdom has generally prevailed. For example, the
United States has entered into treaties such as the
Convention for the Unification of Certain Rules for
International Carriage by Air, May 28, 1999,
S. Treaty Doc. No. 106–45 (2000) (the “Montreal
Convention”) to create a consistent legal framework
for air-carrier liability by, among other things,
preempting claims outside its strictures. Similarly,
with respect to interstate ground transportation,
Congress enacted the Graves Amendment, 49 U.S.C.
§ 30106, to set nationwide vehicle-rental liability
standards, and to preempt common law claims for
vicarious liability.
In this same vein, the FAAAA establishes
nationwide uniformity in ground transportation.
Within its framework, freight brokers serve a welldefined, vital—but limited—role in interstate
commerce, matching shippers with carriers. See 49
U.S.C. § 13904(d). Freight brokers, by definition,
utilize only federally licensed carriers. See 49 C.F.R.
§ 371.2 (“Broker means a person who, for
compensation, arranges, or offers to arrange, the
transportation of property by an authorized motor
carrier.”); 49 C.F.R. § 371.3(a)(2) (requiring brokers
to maintain records of carrier registration numbers).
4
When brokers follow this law, which defines and
limits their role, common law tort claims, seeking to
impose additional, or different, requirements on
them, are—or should be—preempted. See 49 U.S.C.
§ 14501(c)(1).
Allowing states to proceed with common law tort
claims such as “negligent selection” against brokers
for failing to second-guess the federal government’s
determination that a given motor carrier is fit to
operate on the public roads interferes with
Congress’s decision to vest the Federal Motor Carrier
Safety Administration (the “FMCSA”) with exclusive
authority over carrier fitness. These claims would
allow individual state courts to override federal
determinations, and to restrict which licensed
carriers may use the national roadways in their
individual states, thus interfering in an area
Congress reserved for federal regulation.
A negligent selection claim against a broker is
essentially a claim that—even though the broker
matched a shipper with a carrier who was authorized
by federal law to use the nation’s roadways—the
broker should have done an undefined “more”
(beyond its federally-defined role) to vet that carrier,
and should have then black-balled that carrier.
However, that “more” will vary from state to state,
court to court, and jury to jury, always after the fact,
setting no clear guideposts for future actors. It will
allow states to indirectly undermine the national
system of federal carrier licensing, even though they
are preempted from doing so directly.
Eliminating preemption for common law claims
against brokers will leave plaintiffs and state courts
unrestrained by federal guardrails preventing the
5
transfer of risk and responsibility from motor
carriers to brokers. This weakens federal and state
incentives to increase coverage minimums for
carriers, the very entities who are directly
responsible for road safety. Furthermore, absent
preemption, the “more” a broker does to vet a carrier,
seek to assist the carrier in safe operations, or
monitor a carrier to ensure safe operation, the more
a plaintiff may argue (a) that the broker had a duty
to do so, and failed, and/or (b) that the broker
stepped beyond its role as a broker, and acted as an
unlicensed carrier, principal, or joint venturer, and is
thus vicariously liable for the driver’s negligence. In
either scenario, the intended distinction between
brokers and carriers collapses unto itself—and is
necessarily untenable under the FAAAA.
Absent preemption, inconsistent and varied statelaw regimes lead to increased premiums, decreased
coverage limits, and exclusions of certain states and
regions which develop a history of unfair verdicts
against brokers.
Ultimately, brokers and their
insurers could be forced from the market, as costs
and verdicts become prohibitive, with grave
implications for interstate and international
transportation and commerce.
The decision of the Seventh Circuit should be
affirmed.
6
ARGUMENT
I.
Absent Preemption, Unpredictability of
Risk and a Non-Uniform Legal Framework
Threaten to Degrade, and Can Eventually
Destroy, Insurability in the Freight
Brokerage Market
Insurance underwriting relies on an insurer’s
ability to predict and calculate the risks of expected
future losses. When frequency and severity of risk
can be reasonably estimated, insurers are able to set
premiums to cover expected losses, plus reasonable
risk charges. Empirical studies show that “better
predictability leads to better pricing” of insurance
premiums, which is vital “to achiev[ing] . . . a
sustainable business model.” See Nitin Kumar,
White Paper, Exploring a New Dimension of
Predictability in Insurance, Infosys (2018), https://
www.infosys.com/industries/insurance/white-papers/
Documents/predictability-insurance.pdf.
But when predictability declines and ambiguity
rises (whether due to insufficient data, emerging
risks, or volatile environments), insurers charge
higher premiums to offset their inability to forecast
accurately. See Simon Deitz and Oliver Walker,
Ambiguity and Insurance, Capital Requirements and
Premiums, Journal of Risk and Insurance (2016), at 2,
https://www.lse.ac.uk/granthaminstitute/wp-content/
uploads/2012/11/Working-Paper-97-Dietz-andWalker.pdf (“There is by now a body of evidence to
show that, faced with offering a contract under
ambiguity, insurers increase their premiums, limit
coverage, or are unwilling to provide insurance at
all.”); Patrick L. Brockett ET AL., Underwriting &
Ambiguity: an Economic Analysis, J. OF INS. ISSUES,
7
1999 at 1, https://www.researchgate.net/publication/
227651267_Underwriting_and_Ambiguity_An_
Economic_Analysis (“Underwriting & Ambiguity: an
Economic Analysis”) (same).
Empirical studies confirm that ambiguity directly
correlates with premium escalation, and that
insurance premiums for ambiguous risk are higher
than premiums with unambiguous risk.
See
generally, Underwriting & Ambiguity: an Economic
Analysis.
Indeed, ambiguity in either (a) loss
frequency or (b) loss severity leads to premium
increases beyond expected loss costs. When there is
ambiguity in both of these factors, premiums are
highest, reflecting combined uncertainty. Id. at 10,
19.
No insurance market is large enough to absorb all
increases in risk, particularly when the participants
operate at low margins, and the increases in risk are
so unpredictable as to defy pricing models. When
liability and loss exposure in a particular jurisdiction
become disproportionate or unstable, insurers
respond in predictable ways: premiums rise sharply,
coverage narrows, and, ultimately, insurers
withdraw.
Recent examples of this include
California, Florida, Louisiana, Colorado, Iowa, Texas
and
others—where
escalating
wildfire
and
severe-weather claims and losses have driven
insurers to raise rates dramatically or withdraw
from the market altogether. See, e.g., Congressional
Budget Office, Climate Change, Disaster Risk, and
Homeowner’s
Insurance
(Aug.
2024),
https://www.cbo.gov/publication/60674;
JPMorgan
Chase & Co., Insurance: Weathering the Storm of
Inflation, Climate Change and Market-Distorting
8
State
Regulation
(2025),
https://
www.jpmorgan.com/content/dam/jpm/cib/documents/
Weathering_the_storm.pdf; Breck Dumas, California
Insurance Crisis: Here Are the Carriers That Have
Fled or Reduced Coverage in the State, Fox Business
(Jan. 10, 2025), https://www.foxbusiness.com/lifestyle
/california-insurance-crisis-here-carriers-have-fledreduced-coverage-state;
Matt
Brannon,
Home
Insurance Rates to Rise 8% in 2025, After a 20%
Increase in the Last Two Years, INSURIFY (2025),
https://insurify.com/homeowners-insurance/report/
home-insurance-price-projections.
See
also
Underwriting & Ambiguity: an Economic Analysis, at
1 (empirical evidence demonstrates that insurers are
reluctant to cover risks when there is ambiguity
associated with either loss frequency or loss
severity).
The risks in the freight brokerage market, as
envisioned by Congress, were designed to be
predictable, and thus insurable.
However, that
predictability is now fractured by the continued
erosion of the express statutory preemption under
the FAAAA. Unless this Court affirms the decision
of the Seventh Circuit, freight brokers and their
insurers are facing the very unpredictability which
insurance analysts have found to be so damaging to
the insurance industry.
Specifically, unless the decision of the Seventh
Circuit is affirmed, brokers (and their insurers) are
facing unpredictability, and the inconsistencies
inherent in being subject to 50 or more separate tort
systems, each imposing its own standards, always
after the fact. While some states appear to favor this
result (and have filed an amici curiae brief in favor of
9
Petitioner), these same states offer little guidance as
to
how
brokers
should
deal
with
this
unpredictability, apparently content to leave it to
their courts and juries to mete out what passes for
“guidance” sporadically, haphazardly and after the
fact.
The threat posed by unrestrained judicial
rulemaking for brokers has already caused a market
hardening leading towards not only increased
premiums but early signs of a market exit. See
Kyoung-son Song, Market Hardens in Non-Owned
Auto and Contingent Auto Liability, INSURANCE
INSIDER US (Nov. 26, 2025), https://www.insurance
insiderus.com/article/2fn46nwnrs7wyk28mcirk/linesof-business/commercial-lines/market-hardens-in-nonowned-auto-and-contingent-auto-liability
(“Market
Hardens in Non-Owned Auto and Contingent Auto
Liability”) (insurance market which services freight
brokers has hardened, with rates escalating by 2030%, and insurers reluctant to provide high coverage
limits at any price); see also, Glenn Patton,
Insurance, Regulatory Changes for Freight Brokers
and Forwarders, CIFFA (Apr. 4, 2024), https://www.
ciffa.com/ffo/insurance-regulatory-changes-forfreight-brokers-and-forwarders/ (In the wake of large
verdicts against freight brokers, “the contingent auto
liability insurance market has been impacted,
limiting availability for freight forwarders and
brokers to protect against these types of losses.
Many U.S. carriers stopped providing contingent
auto liability coverage . . . Insurers in Canada are
now re-evaluating hired auto coverage (the
equivalent of contingent auto liability), as they could
be impacted by cases in the U.S.”); Market Hardens
in Non-Owned Auto and Contingent Auto Liability
10
(predicting that within 12 months, there might not
be enough insurance capacity to meet demand). If
things worsen, the entire market may become
commercially untenable, its risks being uninsurable,
with a market withdrawal leading to unknowable—
but presumably far-reaching—adverse consequences
for the industry and for interstate and international
commerce itself.
II.
Absent a Clear and Uniform Rule of
Preemption, Courts Have Created a
Fractured Legal Landscape for Brokers
Congress created a nationwide statutory scheme
for interstate motor carriage that recognizes the
separate and distinct roles of carriers and brokers,
and sets specific requirements for their separate
conduct. The FAAAA was enacted to prevent states
from interfering in broker “price, route, or service”
through a uniform federal regime. See Rowe v. New
Hampshire Motor Transp. Ass’n, 552 U.S. 364, 37071 (2008); Dan’s City Used Cars, Inc. v. Pelkey, 569
U.S. 251, 256 (2013). Allowing the safety exception
to swallow broker negligent-selection claims, and
pull them outside the scope of FAAAA preemption,
as some courts have done and Petitioner urges to
become the law of the land, will lead to increased
litigation in more jurisdictions, inconsistent
standards for broker diligence, stacked liability
theories, and higher risk exposure. All of this is
directly contrary to the entire purpose of the FAAAA.
Under federal law, the FMCSA is empowered to
license carriers, and to determine which carriers are
authorized to transport freight in interstate
commerce, and which carriers should have their
authorization revoked.
See 49 U.S.C. §§ 113,
11
13902(a); 49 CFR Part 365; 49 C.F.R. §§ 1.87(a),
385.13. The Secretary is charged with determining
“whether an owner or operator is fit to operate safely
commercial motor vehicles, utilizing among other
things the accident record of an owner or operator
operating in interstate commerce and the accident
record and safety inspection record of such owner or
operator[.]” 49 U.S.C. § 31144(a)(1). This federal
authority is exclusive and comprehensive, and
therefore states have no authority to bar federally
licensed interstate freight carriers from their
highways. Cf. Castle v. Hayes Freight Lines, 348
U.S. 61, 63 (1954) (“Congress in the Motor Carrier
Act adopted a comprehensive plan for regulating the
carriage of goods by motor truck in interstate
commerce. The federal plan of control was so allembracing that former power of states over
interstate motor carriers was greatly reduced. No
power at all was left in states to determine what
carriers could or could not operate in interstate
commerce.”).
While the FMCSA compiles data on carriers,
Congress previously recognized, in the Fixing
America’s Surface Transportation Act (“FAST Act”),
Pub. L. 114-95, 129 Stat. 1312 (2015), at § 5223(d),
that this data is deficient. Therefore, the FMCSA
was required to post the following on its website:
“Readers should not draw conclusions about a
carrier’s overall safety condition simply based on the
data displayed in this system. Unless a motor carrier
has received an UNSATISFACTORY safety rating
under part 385 of title 49, Code of Federal
Regulations, or has otherwise been ordered to
discontinue operations by the Federal Motor Carrier
Safety Administration, it is authorized to operate on
12
the Nation’s roadways.” (emphasis added).2
disclaimers remain on the FMCSA website.
These
The Code of Federal Regulations defines a broker
as “a person who, for compensation, arranges, or
offers to arrange, the transportation of property by
an authorized motor carrier.” 49 C.F.R. § 371.2.
Brokers must be licensed by the FMCSA. 49 U.S.C.
§ 13904. Brokers must follow applicable FMCSA
laws and regulations.
49 U.S.C. § 13904(a)(2).
Under those laws and regulations, for interstate
transport, brokers may only work with carriers
authorized by the FMCSA, who carry the amount of
liability insurance required by the FMCSA. See 49
C.F.R. §§ 371.2, 371.3. Federal law (as properly
understood) preempts common law tort claims
against freight brokers who fulfill their federallymandated role, thus creating a stable insurance
market for brokers.
Imposing a common law,
“negligent selection” duty on brokers to second-guess
these federal determinations, would directly
contradict the deregulatory purposes of the FAAAA,
and would allow states to bar carriers from their
roads indirectly, although they are forbidden to do so
directly.
Carriers are also required, by federal law, to
carry liability insurance for bodily injury or death
resulting from their negligence.
See 49 U.S.C.
§ 13906(a)(1). States are permitted to set higher
2 Notably, in this case, Petitioner’s negligent selection claim is
effectively premised on his argument that Respondents should
have relied on data, which Congress stated was unreliable, and
used this unreliable data to black-ball a carrier, see Pet. Br. 11,
even though, under federal law, that carrier was “authorized to
operate on the Nation’s roadways.” See Pub. L. 114-95, 129
Stat. 1312 (2015), at § 5223(d).
13
insurance minimums for carriers.
§ 14501(c)(2)(A).
See 49 U.S.C.
However, brokers are not required to carry
insurance for bodily harm or death. Under federal
law, brokers must carry insurance (or other financial
security)—in effect, a bond—only to pay claims
arising out of the brokers’ failure to pay freight
charges under their agreements. See 49 U.S.C.
§ 13906(b).
This reflects a policy which even
predates deregulation and the FAAAA:
The business [of brokers] does not require
operation of vehicles nor the transporting
or otherwise handling of cargo . . . . Thus,
brokers are not exposed to bodily injury,
property damage or cargo loss and
damage liability as are motor carriers.
Brokers merely act as intermediaries . . . .
Because their exposure is so different,
there is no need, nor do we deem it
appropriate or workable, to implement a
self insurance program similar to that in
place for motor carriers.
See 4 I.C.C. 358; 1988 I.C.C. LEXIS 255, **20-21
(1988); cf. also 49 U.S.C. § 311(c) (1946) (now
abrogated).
Nevertheless, brokers desire liability insurance
that extends to personal injury claims arising out of
their business, if it is available and affordable. Such
insurance is generally intended to be utilized only in
rare instances where a broker erroneously stepped
outside its federally prescribed role and entered an
area where common law tort claims might not be
preempted. In accidents where alleged damages will
not reach federal insurance limits and are thus
14
covered by typical motor carrier insurance, brokers
are generally left out of the fray. But when there are
serious injuries, or death, and claims exceed the
motor carrier insurance limits mandated by law,
prudent brokers, who managed to purchase third
party liability insurance despite having no legal
obligation to do so, become the target. Meanwhile
smaller brokers who cannot afford coverage will face
bankruptcy with every claim or simply shut their
doors.
Transferring liability to brokers on the premise
that there will always be ample additional insurance
coverage presumes that such insurance is, and will
remain, available or is an off-the-shelf product. The
availability of such insurance may vary or could be
limited in nature, such that there are exorbitant
deductibles or self-retention limits. In other words,
even if a broker could obtain additional insurance,
that insurance may come with significant strictures
and costs—or be altogether unavailable to cover
certain risks. Introducing further unpredictability
by moving away from FAAAA preemption and
increasing the likelihood of inconsistent and variable
tort liability could result in a circumstance where
third-party liability becomes altogether uninsurable
for brokers, even as the need for it becomes most
dire. See, supra, § I.
Thus, the insurance that does exist (even in
limited form) is now at risk, as this case and similar
cases seek to stretch common law tort liability well
beyond its intended bounds. While doing so may
help a small number of plaintiffs in the short term, it
will ultimately have the effect of raising premiums,
and lowering coverage amounts, thus leading to
15
increased transportation costs and higher prices
nationwide. It may also drive insurers (and brokers)
from the market, which will ultimately benefit
neither injured motorists, nor interstate commerce.
See, supra, § I.
Certain amici filing in favor of Petitioner
nevertheless argue that “negligent selection” claims
are necessary because the federal system of (a)
licensing and regulating motor carriers, and (b)
working with states to assign the primary risk of
unsafe driving to motor carriers (where it belongs), is
broken.
For example, the current federal insurance limit
of $750,000 per incident for motor carriers has not
changed in more than 30 years, while the size of
claims, settlements, and awards/judgments has
increased many times over. See Br. of the Institute
for Safer Trucking as Amicus Curiae in Support of
Petitioner (“IST Br.”) 12-14; Br. of Amicus Curiae
American Truckers United in Support of Petitioner
(“ATU Br.”) 9-11. However, if these amounts are
inadequate after decades of inflation, then Congress
or individual states may raise those limits. What
they may not—and should not—do is seek to transfer
this excess liability to brokers.
Likewise, amici for Petitioner complain that the
system envisioned by Congress, under which the
FMCSA inspects and oversees carriers, is also
broken. See IST Br. 7-11; ATU Br. 9-11. They
complain that the FMCSA is understaffed, and that
unsafe carriers have found numerous ways to avoid
an “Unsatisfactory” rating, removal by the FMCSA,
and other consequences by, among other things,
reconstituting themselves. See ATU Br. 10-11; IST
16
Br. 10-12. Indeed, the FMCSA itself recognizes that
the data on its system might be unreliable, and is
required by law to caution users not to draw
conclusions from its published carrier-safety data,
other than from an “Unsatisfactory” rating. See,
supra, at 11-12.
However, amici’s proposed solution—to in effect
force brokers to act as the unappointed regulators of
interstate transport—is unworkable and contrary to
law. Brokers have no governmental powers, are not
involved in every motor carriage, and have no
rulebook to follow. In any event, Congress assigned
this regulatory power exclusively to the Department
of Transportation. If the very agency that licenses
carriers cannot maintain and publish a reliable
database that the public can rely upon when
considering carriers, how can brokers be expected to
do so? And even if that were not already an
impossible task, how could they do so in a way that
meets as many as 50 different state standards, which
will emanate, if at all, from rulings in tort litigation
since states are not permitted to issue their own
rules and standards for forcing federally licensed
carriers off the national roadways? See Castle, 348
U.S. at 61.
“Negligent selection” claims are not the only
claims being brought against brokers, in violation of
Congress’s express preemption. Thus, while this
case involves an allegation that a broker was
negligent in selecting a carrier, other cases allege
that a broker vetted drivers and carriers, and/or
imposed safety requirements, beyond the FMCSA
requirements, and thus acted as a carrier, not as a
broker. See, e.g., Rockne v. J.B. Hunt Transport,
17
Inc., No. 24-CV-00065-H-BU, 2025 WL 2181707, at
*6-7 (N.D. Tex. July 17, 2025); Ciotola v. Star
Transportation & Trucking, LLC, 481 F.Supp.3d 375,
392-93 (M.D. Pa. 2020). Likewise, a broker that
takes steps to encourage a carrier to take safety
measures faces allegations of vicarious liability for
supposedly “controlling” that carrier. See, e.g., Ortiz
v. Ben Strong Trucking, Inc., 624 F. Supp. 3d 567,
582 (2022) (“A broker is not vicariously liable for the
negligence of its motor carrier’s driver unless [the
broker] had control over [the driver’s] driving time
and the condition in which he drove[.]”) (internal
citations and quotations omitted); Sperl v. C.H.
Robinson, 408 Ill.App.3d 1051, 1053-55, 1058 (2011).
See also, Market Hardens in Non-Owned Auto and
Contingent Auto Liability (while negligent selection
claims against brokers are more frequent, the largest
“nuclear verdicts” against brokers have generally
occurred in cases where they were accused of
exercising too much control).
Should this Court conclude that the so-called
“safety exception” allows for common law torts such
as broker negligent-selection claims against brokers
who comply with federal law, the result would be
ratification of sweeping expansion of state tort
authority into the core of broker services. Such an
interpretation would effectively dismantle the
FAAAA’s preemptive shield for brokers, exposing
them and their insurers to a patchwork of state
negligence regimes. The practical consequences are
already being felt in jurisdictions that have adopted
this interpretation. These consequences have major
implications for insurers—and would be insurers—in
underwriting and pricing their policies, in deciding
18
acceptable policy limits, and, ultimately, in whether
to continue to issue policies at all.
Absent a clear rule of law, insurers underwriting
broker policies will confront an increasingly
fractured and unpredictable landscape. A single
interstate shipment often traverses multiple states,
exposing brokers—and by extension their insurers—
to varying liability standards. Cf. Cal. Trucking
Ass’n v. Su, 903 F.3d 953, 951 (9th Cir. 2018), cert.
denied, 139 S. Ct. 1331 (2019) (citing Dan’s City Used
Cars, 569 U.S. at 260) (The FAAAA intended to
prevent states “from replacing market forces with
their own, varied commands.”).
Thus, brokers
selecting carriers for multi-state shipments will face
disparate state common-law standards for carrier
screening.
This variability on what information to collect,
how to evaluate safety data, and when to reject
carriers undermines Congress’s goal of uniformity in
the transportation industry. See, e.g., Krauss v. Iris
USA, Inc., No. 17-778, 2018 WL 2063839, at *6 (E.D.
Pa. May 3, 2018). Moreover,
To avoid negligence liability, a broker like
Defendant would need to inspect each
motor carrier’s background and the ways
in which the motor carrier investigates,
hires, and trains its own drivers, and
“such additional inspection would result
in state law being used to, at the least
indirectly, regulate the provision of
broker services by creating a standard of
best
practices,
and
ultimately
contravening Congress’s deregulatory
objectives in enacting the FAAAA.”
19
Gillum v. High Standard, LLC, No. SA-19-CV-1378XR, 2020 WL 444371, at *6 (W.D. Tex. Jan. 27,
2020). Accord Ye v. Global Sunrise, Inc., 2020 18CV-019621, 2020 WL 1042047, at *3 (N.D. Ill. Mar.
4, 2020) (“[T]o avoid liability for a negligent hiring
claim like plaintiff’s, brokers would need to examine
each prospective motor carrier’s safety history and
determine whether any prior issues or violations
would be permissible under the common law of one
or more states.”).
Numerous decisions underscore the uncertainty
brokers and their insurers face, including what
information must be gathered, how safety data must
be evaluated, and when a carrier must be rejected.3
Moreover, some state courts have relied on FMCSA
data as “evidence” of broker negligence, even though
the FMCSA explicitly cautions that the results are
enforcement tools and that readers “should not draw
conclusions” about safety. See, e.g., Mann, 2017 WL
3191516, at *3, Schramm, 341 F. Supp. 2d at 542, n.
4.
Furthermore, in the absence of clear preemption
rules, plaintiffs continue to assert vicarious liability
or agency claims alongside negligent-selection claims
to maximize broker liability. Some courts have
recognized agency-based broker liability, while other
jurisdictions reject them. For example, in Sperl v.
3 Compare Schramm v. Foster, 341 F. Supp. 2d 536, 552; Jones
v. C.H. Robinson Worldwide, Inc., 558 F.Supp.2d 630, 646-48
(W.D. Va. 2008); Mann v. C.H. Robinson Worldwide, Inc., No.
16-cv-00102, 16-cv-00104, 16-cv-00140, 2017 WL 3191516, at *8
(W.D. Va. July 27, 2017) with McLaine v. McLeod, 661 S.E.2d
695, 701 (Ga. Ct. App. 2008); Smith v. Spring Hill Integrated
Logistics Mgmt., Inc., No. 1:04 CV 13, 2005 WL 2469689, at *5
(N.D. Ohio Oct. 6, 2005).
20
C.H. Robinson, 408 Ill.App.3d 1051 (2011), a court
found sufficient broker control over the carrier to
impose agency liability. Conversely, in Montgomery
v. Caribe Transp. II, LLC, 124 F.4th 1053, 1055-1058
(7th Cir. 2025), cert granted 222 L.Ed 2d 1241 (Oct.
3, 2025), the court found that the broker did not have
an agency relationship with the carrier. Where these
arguments are permitted, the broker that carefully
and, without a hint of negligence, vets and refers
business to a motor carrier is then argued to have
exercised control such that it is vicariously liable for
that carrier and its driver. This is nothing but a
trap, with no sound policy basis for it, and, as
discussed in § IV, infra, one that can only serve to
make the roads less safe over time.
As liability schemes within the various states
begin to deviate from each other, forum shopping will
continue to be a concern. Because courts have
proven unwilling to grant jurisdictional motions
brought by brokers, notwithstanding that brokers
have little control over routing,4 prudent carriers,
4 See Nyswaner v. C.H. Robinson Worldwide Incorporated, 353
F.Supp.3d 892 (D. Ariz. 2019); Gilley v. C.H. Robinson
Worldwide, Inc., Civ. No. 18-00536, 2019 WL 1410902 (S.D. W.
Va. March 28, 2019); Wardingley v. Ecovyst Catalyst
Technologies, LLC, No. 22–CV-115-PPS-JEM, 2022 WL
16714139 (N.D. Ind. Nov. 4, 2022); Estate of Wray v. Kennedy
Brothers Logis., Inc., No. 22-CV-70-FL, 2022 WL 16550315
(E.D. N.C. Oct. 31, 2022); Carter v. Khayrullaev, No. 20-cv00670-AGF, 2022 WL 9922419 (E.D. Mo. Oct. 17, 2022);
White v. Scotty’s Contracting & Stone, LLC, No. 21-CV-00161GNS, 2022 WL 4588417 (W.D. Ky. Sept. 29, 2022);
Ortiz, 624 F. Supp. 3d 567; Mata v. Allupick, Inc., No. 21-cv00865-ACA, 2022 WL 1541294 (N.D. Ala. May 16, 2022); Dixon
v. Stone Truck Line, Inc., 19-CV-000945-JCH-GJF, 2021 WL
5493076 (D.N.M. Nov. 23, 2021); Taylor v. Sethmar Transp.,
No. 19-cv-00770, 2021 WL 4751419 (S.D. W.Va. Oct. 12, 2021);
21
brokers, and their insurers will seek ways to avoid
high-liability states altogether—even when other
considerations such as traffic congestion or
seasonally adverse weather might favor them. A
decision denying preemption thus could result in
operational decisions being made based on potential
legal
exposures
rather
than
operational
considerations such as road conditions and fuel
efficiency.
Not only is all of this undesirable, unworkable,
and prohibited by express preemption, but it is also
ultimately self-defeating. The business model of
brokers and carriers (which operate on narrow
margins), and of the trucking industry generally, is
not designed to make brokers the excess insurers of
motor carriers. As noted in § I, supra, the inevitable
result of an unpredictable, non-uniform, and everchanging liability scheme, which is necessarily based
on data that is admittedly unreliable, is that
insurers must raise premium prices, and lower
insurance limits. Insurers may leave the market, or
black-out portions of the country. Insurers and
brokers may be forced out of the market. All of this
leads inevitably to higher shipping costs and higher
consumer prices, the exact result Congress intended
to forestall when it enacted the FAAAA.
III. Uniformity of Liability Rules Should Be
the
Standard
in
Interstate
and
International Transportation
Federal preemption over state law ensures that
freight brokers are subject to a uniform, predictable
Gerred v. FedEx Ground Packaging Sys., Inc., No. 21-cv-1026-P,
2021 WL 4398033 (N.D. Tex. Sept. 23, 2021).
22
legal framework and set of duties governing their
involvement in interstate and international carriage
of goods.5 “With the passage of the [FAAAA] in 1994,
Congress turned its attention to the trucking
industry ‘upon finding that state governance of
intrastate transportation of property had become
“unreasonably burden[some]” to “free trade,
interstate commerce, and American consumers.”’” Ye
v. GlobalTranz Enters., Inc., 74 F.4th 453, 457 (7th
Cir. 2023). Ensuring that the FAAAA applies to the
exclusion of state law tort claims fosters
predictability of risk and stability of legal obligations
in interstate transportation systems, which in turn
spurs commercial benefits for businesses and
consumers alike by “barring such burdensome state
regulations.” Id. (citing 49 U.S.C. § 14501(a)(1),
(b)(1), (c)(1)).
The special importance of uniformity in
connection with interstate and international
transportation has been recognized since the
founding of the Republic. As this Court again
recognized recently in Great Lakes Ins. SE v. Raiders
Retreat Realty Co., LLC, 601 U.S. 65, 69 (2024), there
are areas of law where national uniformity is critical:
Under the Constitution, federal courts
possess authority to create and apply
maritime law.
Article III of the
Although motor carriage is generally thought of as a domestic
issue, it also greatly affects foreign commerce, since motor
carriers can operate across both the Northern and Southern
borders of the United States. Canada and Mexico together
represent approximately 30% of U.S. foreign trade (with
approximately 60% of that trade moving by truck), thereby
impacting some 20% of the total foreign commerce of the United
States.
5
23
Constitution extends the federal judicial
power to “all Cases of admiralty and
maritime Jurisdiction.” That grant of
jurisdiction contemplates a system of
maritime law “ ‘coextensive with, and
operating uniformly in, the whole
country.’ ” The purposes of that uniform
system include promoting “the great
interests of navigation and commerce”
and maintaining the United States’
“diplomatic relations.”
(citations omitted).
As new modes of carriage with interstate and
international reach have emerged, Congress has
continued to recognize the importance of uniformity.
For example, there is already closely analogous
precedent for uniformity and preemption of vicarious
fault for equipment providers for interstate carriage.
The Graves Amendment, 49 U.S.C. § 30106, is a
federal tort reform statute that shields rental
companies from vicariously liability claims,
providing that:
(a) [] An owner of a motor vehicle that
rents or leases the vehicle to a person (or
an affiliate of the owner) shall not be
liable under the law of any State or
political subdivision thereof, by reason of
being the owner of the vehicle (or an
affiliate of the owner), for harm to
persons or property that results or arises
out of the use, operation, or possession of
the vehicle during the period of the rental
or
lease,
if--
24
(1) the owner (or an affiliate of the owner)
is engaged in the trade or business of
renting or leasing motor vehicles; and
(2) there is no negligence or criminal
wrongdoing on the part of the owner (or
an affiliate of the owner).
This statute was prompted by sound policy
favoring uniformity in interstate transportation. See
generally, Garcia v. Vanguard Car Rental USA, Inc.,
540 F.3d 1242, 1252 (11th Cir. 2008). As a result,
the Graves Amendment preempts tort claims “within
the Amendment’s preemption clause and not within
its savings clause.” Id. at 1245.6 It has now been in
effect for two decades and evidences the generally
salutatory effects of a clear, uniform national
standard in interstate transportation.
The benefits of uniformity are recognized in air
transportation as well.
International aviation
depends upon a consistent legal framework setting
out uniform air carrier liability through a
6 See also Carton v. Gen. Motor Acceptance Corp., 611 F.3d 451,
456–57 (8th Cir. 2010) (finding that the Graves Amendment
would preempt state law in the area of vicarious liability); Rein
v. Cab East LLC, No. 08 Civ. 2899(PAC), 2009 U.S. Dist. LEXIS
52617, at *7, 2009 WL 1748905 (S.D.N.Y. Jun. 22, 2009)
(similar); Green v. Toyota Motor CreditCorp, 605 F.Supp.2d 430,
434 (E.D.N.Y. 2009) (similar); Flagler v. Budget Rent a Car
Sys., 538 F.Supp.2d 557, 558 (E.D.N.Y. 2008) (“[T]he Graves
Amendment preempts state laws that impose vicarious liability
on businesses that rent or lease motor vehicles.”); Layton v.
Russell, No. 13-CV-325, 2014 WL 2949370, at *3 (W.D. Mich.
June 30, 2014) (“[T]he Graves Amendment preempts all state
vicarious liability schemes imposing liability on lessors of motor
vehicles where the vehicle was involved in an accident through
no fault of the lessor.”); Hagen v. U-Haul Co. of Tennessee, 613
F. Supp. 2d 986, 1000 (W.D. Tenn. 2009) (same).
25
comprehensive multilateral treaty—the Montreal
Convention. The Montreal Convention replaced the
earlier Convention for the Unification of Certain
Rules Relating to International Transportation by
Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876
(the “Warsaw Convention”). Indeed, signifying the
importance
of
uniformity,
“[t]he
Montreal
Convention is the product of an effort . . . . to reform
the Warsaw Convention so as to ‘harmonize the
hodgepodge of supplementary amendments and
intercarrier agreements’ of which the Warsaw
Convention system of liability consists.” Ehrlich v.
Am. Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.
2004).7 The Montreal Convention entered into force
on November 4, 2003, and has significant global
participation, with 143 parties, including the United
States.8
The Warsaw Convention also had uniformity as its
foundation. As this Court opined:
7
The cardinal purpose of the Warsaw Convention, we
have observed, is to “achiev[e] uniformity of rules
governing claims arising from international air
transportation.” The Convention signatories, in the
treaty’s preamble, specifically “recognized the
advantage of regulating in a uniform manner the
conditions of ... the liability of the carrier” . . . Given
the Convention’s comprehensive scheme of liability
rules and its textual emphasis on uniformity, we
would be hard put to conclude that the delegates at
Warsaw meant to subject air carriers to the distinct,
nonuniform liability rules of the individual
signatory nations.
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155,
169 (1999).
8 Montreal Convention, available at https://www.icao.int/sites/
default/files/secretariat/legal/CurrentListofParties/Mtl99_EN.pdf.
26
Various U.S. courts have affirmed that the
Montreal Convention “preempts state law actions
falling within its scope.” Eli Lilly Co. v. Air Exp. Int’l
USA, Inc., 615 F.3d 1305, 1313 n. 4 (11th Cir. 2010).
See also Badar v. Swissport USA, Inc., 53 F.4th 739,
744 (2d Cir. 2022) (“To achieve a uniform liability
regime, the Montreal Convention, like the Warsaw
Convention before it, preempts ‘all state law claims
that fall within [its] scope.’”); Dagi v. Delta Airlines,
Inc., 961 F.3d 22, 27–28 (1st Cir. 2020) (“If an action
for damages falls within one of the Convention’s
damages provisions, then the treaty provides the sole
avenue for relief -- that is, the Montreal Convention
preempts all local claims that fall within its scope,
even if the claims are not cognizable (i.e., even if they
do not satisfy the conditions for liability) under the
Convention.”); Lindsey v. Am. Airline, Inc., No. 24CV-01440-RS, 2024 WL 3471197, at *2 (N.D. Cal.
July 18, 2024) (“The Warsaw and Montreal
Conventions were designed to curb airline exposure
to unlimited liability by creating uniform laws and
procedures for damages sustained on international
flights. Allowing plaintiffs recourse through domestic
law, even if no remedy is available under the
Montreal Convention, would undermine this
intention. Therefore, the Montreal Convention
preempts state and federal claims that fall within its
substantive scope.”) (citations omitted).
Moreover, the uniformity governing maritime and
aviation reflects a much-needed standardization of
legal regimes for the smooth operation of
international commerce. Similarly, this uniformity
should be extended to and reaffirmed for interstate
transportation
because
motor
carriers
may
themselves be transporting goods across borders or
27
may be providing the first or last leg of a multimodal transportation of goods in international
commerce.
In line with this widespread principle that
interstate and international transportation is best
governed by a uniform legal framework, this Court
should reinforce this uniformity by affirming the
decision of the Seventh Circuit. A uniform national
legal standard, applicable to a business regulated by
the federal government, will provide a stable risk
environment conducive to participation by insurers,
which enables them to set premiums, limits, and
deductibles, and for the market to develop policy
wordings with a clear understanding of what risks
are, and are not, being undertaken.
IV. Failure
to
Enforce
Preemption
Discourages
Broker
Initiative
and
Innovation, Increases Risks, and Erodes
Safety
The current uncertainty regarding FAAAA
preemption has created a disjointed system that
subjects brokers to disparate state law claims.
Furthermore, it subjects brokers to a “damned if you
do; damned if you don’t” regime, where brokers who
limit themselves to the federal rules are potentially
subject to “negligent selection” claims, while brokers
who do more are then charged with vicarious liability
based on additional steps taken, even if they are the
very steps that plaintiffs have demanded elsewhere.
Rather than promoting safety, the lack of clear
standards actually imperils safety.
Removing preemption, and thus allowing states
to force freight brokers to act as excess insurers for
the shipping industry, removes any incentive for
28
states to use the most effective tool Congress gave
them to improve both safety and compensation for
injured victims, namely to require carriers using
their roadways to maintain increased insurance
policy limits for personal injury.
49 U.S.C.
§ 14501(c)(2)(A). States can use the historic data of
their own roadway incidents to determine whether
carriers need to carry increased coverage, and if so,
what the appropriate limits should be. Furthermore,
if carriers are required to obtain higher coverage
amounts, their insurers will likely create incentives
for safer carriers, increase rates for unsafe carriers
with negative histories, and create programs where
improved safety leads to lower premiums. Forcing
brokers (and their insurers) who have no real control
over carriers to step into this role will remove all
these incentives, which will not only decrease safety
and compensation to victims in the long run, but is
also contrary to Congressional intentions.
Allowing states to transfer financial risk from the
operators of motor vehicles, who have the federal
duty to operate safely, to market intermediaries,
such as brokers, who have a different role, creates an
obvious “moral hazard.” Put another way, allowing
states to do this would irrationally transfer liability
and financial exposure from parties actually able to
control motor carrier and driver safety (e.g., motor
carriers, federal and state regulators, licensing
agencies, and police) to brokers and their insurers,
neither of which have such control.
While Petitioner in this case argues that brokers
must do an undefined “more” than their federallymandated role or risk “negligent selection” claims,
doing “more” will subject brokers to other forms of
29
unfair liability, absent preemption. To wit, the more
steps a broker takes to vet carriers, to encourage
carriers to vet drivers, to include contractual
incentives for safety, to leverage technology to track
shipments, speed and hours-of-service compliance,
and generally to impose any sort of safety
obligations, the greater the risk that a plaintiff will
allege that the broker is a de facto carrier, principal,
or joint-venturer and is liable as such. See, supra,
§ II, at 16-17.
The status quo seen in many states of posturing
cases for policy limits perversely incentivizes
insureds (including brokers, especially smaller
brokers) to seek lower levels of insurance, or causes
them to be priced out at higher levels. Further,
higher levels of insurance become unavailable, even
if brokers want such coverage. See Market Hardens
in Non-Owned Auto and Contingent Auto Liability,
supra, at 9 (noting that increased coverage is
becoming harder to find). In catastrophic cases, the
threat of undifferentiated nuclear verdicts may allow
the extraction of settlements far in excess of any
rational fault analysis, to avoid the potential of
excess exposure to insureds. While this may help out
a few injured parties, the long-term impact is to lead
to less—not more—insurance, and to deter proactive
and creative efforts by both brokers and their
insurers to mitigate loss and therefore risk. And
again, the ostensible onus on brokers to cover this
risk by getting more insurance presumes (perhaps
erroneously) that such insurance is sufficient or will
continue to exist —or that the circumstances absent
preemption will not eliminate the insurance market
for this type of liability altogether.
30
Absent preemption, broker conduct—even if
supportive of driver safety—is used by courts as a
basis to establish a duty of care and to hold brokers
vicariously liable for motor carriers.
This is
untenable and counterproductive. Affirming FAAAA
preemption promotes safety because it creates the
right incentives for businesses through clarity of a
uniform legal regime.
CONCLUSION
The decision of the Seventh Circuit should be
affirmed.
Respectfully submitted,
Withers Bergman LLP
CONTE CICALA*
*Counsel of Record
ALEXANDRA ROGOFF-GREEN
909 Montgomery Street
Suite 300
San Francisco, CA 94133
415-872-3234
conte.cicala@
withersworldwide.com
alexandra.rogoff-green@
withersworldwide.com
31
CHAYA F. WEINBERG-BRODT
JOVANA CRNCEVIC
430 Park Avenue
New York, NY 10022
212-848-9800
chaya.weinberg-brodt@
withersworldwide.com
jovana.crncevic@
withersworldwide.com
Counsel for Amicus Curiae
Tokio Marine Houston
Casualty Company
JANUARY 21, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.