Perspective: Post-Montgomery, trucking needs defined standard

Every participant in the transportation chain — brokers, carriers and shippers — wants the same thing: safer roads. That shared goal is precisely why the Supreme Court’s unanimous ruling in Montgomery v. Caribe Transport II may be well-intentioned, but the conversation it started cannot end in a courtroom.

The ruling confirmed that the safety exception to the Federal Aviation Administration Authorization Act applies to freight brokers, exposing them to potential state-level liability for carrier selection decisions when a carrier they hire is involved in an accident.

What the ruling didn’t create, and what the industry urgently needs, is a definition of an unsafe carrier and clear guidelines on responsible carrier selection.

Courts are enforcing an unwritten standard

Brokers are effectively operating under a “reasonable carrier selection” standard, yet no regulator or statute has defined what “reasonable” means in practice, and court rulings apply the standard inconsistently, leaving brokers without clear, uniform criteria. Even worse, that standard shifts depending on the state where an accident occurs. That ambiguity doesn’t protect the public. Neither does placing that burden on brokers and shippers who lack the regulatory authority, institutional infrastructure, data and expertise that the Federal Motor Carrier Safety Administration possesses to correlate carrier characteristics with accident risk.

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Keepman 

Consider what brokers are working with. Around 90% of U.S. motor carriers have no FMCSA safety rating, according to the agency's own data. Of those that carry a “Satisfactory” rating, many still carry significant crash and violation histories. As of May 15, the national vehicle out-of-service rate was about 22% — more than 1 in 5 vehicles pulled from service at inspection. Even a carrier with a strong rating on paper may have vehicles on the road that would fail inspection tomorrow.

The impossible position

The current environment creates a bind with no clear exit. A broker that relies on publicly available carrier data risks being told by plaintiffs that it did too little. A broker that requests information beyond what regulators require increases the chance a plaintiff will argue the broker exercised such control that it assumed a carrier’s duty of care.

This is not a workable standard. Hindsight review in litigation will almost always find something a broker could have done differently — a different question than whether a broker acted reasonably.

What the industry needs next

Montgomery v. Caribe should be a catalyst, not a conclusion. The next step is for FMCSA or Congress to define the criteria by which responsibility is measured.

Brokers need to know, in advance, which carrier-vetting steps the law will recognize as sufficient. Carriers need to understand how their safety records will be evaluated. Courts need a predictable framework to apply before a crash occurs, not a shifting standard constructed in hindsight.

The transportation industry is already navigating capacity constraints, rising costs and new rules. Adding open-ended liability without defined standards does not make roads safer. It drives smaller brokers out of the market, concentrates the industry among those who can afford the legal exposure and leaves the underlying problem unsolved. Without a predictable standard, insurance rates will rise, capacity will tighten and the costs will ultimately reach consumers. The result is a market that rewards scale over safety and punishes carriers who have done nothing wrong.

Responsible brokers want to do the right thing, but the industry needs regulators to help shape what that looks like.

Ryan Keepman is the CEO of Evans Transportation, a family-owned, full-service third-party provider of custom logistics solutions for a range of North American shippers.