Your Broker Just Got Sued After Montgomery. Here Is How the Fight Actually Goes.

By Ezequiel “Zeke” Moya, Jr.  |  Partner  |  Roerig, Oliveira & Fisher, LLP

In an earlier post, I laid out seven steps freight brokers should take to protect their business after Montgomery v. Caribe Transport II, LLC. That post was about prevention: the carrier files, the safety-rating checks, the documentation habits that build a defensible record before an accident ever happens.

This post is about what happens when prevention was not enough, or was not there at all, and your broker gets sued anyway. Montgomery did not change whether a broker can be held liable. Brokers could always be held liable for negligently selecting a dangerous carrier. What changed is when and how much it now costs to find out.

If you are an adjuster setting a reserve, a TPA evaluating a new claim, a broker who just got served, or in-house counsel trying to understand your exposure, this is the litigation reality you are now operating in.

The Change Is Procedural, and That Is the Whole Point

Before Montgomery, whether a broker sued for negligent carrier selection had a fast, cheap exit depended entirely on where the case was filed. The circuits had split four ways on whether the Federal Aviation Administration Authorization Act preempted these claims. The Seventh and Eleventh Circuits held they were preempted, handing brokers there a clean motion-to-dismiss win before discovery. The Sixth and Ninth Circuits held they were not, and let the claims proceed. A broker’s early exit was a matter of geography, not a nationwide right.

Montgomery resolved that split against brokers. The headline change is procedural, and it is significant: nationwide, negligent-selection claims now survive the pleading stage and proceed to discovery and, in many instances, to trial.

Here is the part that gets lost in the alarmed headlines. Brokers did not lose their traditional defenses. A broker can still argue that it exercised reasonable care in selecting the carrier. A broker can still argue that whatever it did or failed to do was not the cause of the plaintiff’s injuries. Those defenses survived Montgomery fully intact.

The problem is timing. Reasonable-care and causation defenses are fact-specific, which means they are rarely resolved at the pleading stage and often cannot be resolved on summary judgment either. They require a developed factual record. A developed factual record requires discovery. And discovery requires the broker and the broker’s insurer to fund full-scale litigation before anyone gets a judicial answer on the merits.

So Montgomery preserved the substance of the broker’s defenses while significantly altering their timing and cost profile. The same defense that used to resolve a case in ninety days on a preemption motion now likely resolves it in two or three years, after depositions and expert reports. That is the exposure. Not a new theory of liability, a new litigation cost curve.

Discovery Is the New Battleground, and It Is Targeted

Once a negligent-hiring case survives to discovery, plaintiff’s counsel knows exactly where to dig. The Montgomery complaint is a roadmap, and the plaintiff’s bar has been circulating that roadmap since May.

Expect targeted, aggressive discovery aimed at three things: the broker’s internal communications, its carrier-selection records, and its vetting protocols. The strategic goal is to build toward one of two conclusions in a corporate representative deposition. Either the broker had no meaningful vetting protocol at all, or the broker had one and did not follow it on this load. Plaintiff’s counsel will take either one,

because either one supports the negligence theory.

This is why the carrier file matters so much, and why an inconsistent process is worse than a simple one. A broker who runs the same vetting steps on every carrier, every load, and documents them walks into that deposition with a record. A broker whose process varies by who happened to handle the load walks in with a problem. The plaintiff’s lawyer is not hoping to find a smoking-gun email. In many cases, the absence of a file is the smoking gun.

The Multi-Theory Problem: It Is Not Just Negligent Hiring Anymore

A post-Montgomery broker case is rarely a single, clean negligent-selection claim. Plaintiffs now plead in layers, and each layer requires a distinct defense that has to be coordinated from the earliest stage of the case.

Expect to see negligent hiring pleaded alongside vicarious-liability theories, and, increasingly, claims aimed at any third-party vetting vendor the broker relied on. That last one is worth pausing on, because it is new and it is under-discussed. Many brokers outsource carrier vetting to commercial monitoring services. If a broker relied on a vendor’s green light and the carrier turned out to be dangerous, plaintiff’s counsel will look hard at the contract between broker and vendor, at what the vendor actually checked, and at whether the broker’s reliance on the vendor was itself reasonable. A broker who assumed the vendor “handled it” may find that assumption is the weakest point in the file.

For adjusters and TPAs, the practical consequence is that coverage analysis and defense strategy now have to account for multiple theories against multiple potential defendants, sometimes with competing interests. Coordination between the broker’s insurer and the carrier’s insurer, on discovery scope and motion practice, is no longer optional. Gaps between the two defenses are exactly what plaintiff’s counsel exploits.

Why “Just Any Defense Lawyer” Is a Mistake Here

There is a line in Justice Kavanaugh’s concurrence that every broker and every insurer should sit with. The concurrence contemplates that a broker who exercised genuine reasonable care can mount a credible, well-documented defense. But building that defense requires counsel who actually understands how freight brokerage works, what a carrier packet contains, what an out-of-service rate means, how FMCSA authority is issued and lapses, and how a load moves from tender to delivery.

Counsel unfamiliar with the operational realities of the industry will struggle to build the kind of defense the concurrence describes. They will not know which documents tell the reasonable-care story, which discovery requests are fishing expeditions worth fighting, or which of the plaintiff’s multi-theory claims is the real threat versus padding. In a case that now turns entirely on the factual record, the lawyer who cannot read that record fluently is a liability.

This is not an abstract concern in the Rio Grande Valley, where a single transportation matter can involve U.S. and Mexican entities, cross-border authority questions, and carrier documentation in two languages. The defense has to be built by someone who has lived in those files.

A Note for Shippers: You Are a Broker Case Now, Whether or Not You Should Be

Montgomery is a broker case. The decision is narrow, broker-specific, and notably silent on shippers. On its own terms, it did not expand shipper liability at all.

That is not how it is playing out in the pleadings. Plaintiffs have already begun citing Montgomery to argue for expanded liability up the transportation chain, and shippers are increasingly being named as defendants under negligent-selection or “supply chain liability” theories. The argument runs that a shipper has a duty to select a broker who in turn employs reasonable carrier-vetting procedures.

Many of these claims have limited legal viability. But viability is not the point at the outset. Naming the shipper expands discovery, invites demands for the shipper’s internal policies and risk-management materials, and raises fact questions that can erode a shipper’s ability to win dismissal on summary judgment. In other words, a claim that should lose can still cost a shipper a full discovery cycle before it does.

For cross-border operators, this intersects with a problem I have flagged before. In a maquiladora supply chain, the company named on the shipping paperwork is often not the company that actually arranged the U.S.-side transportation. Plaintiff’s counsel, casting a wide net, may name the wrong entity, the right entity, or both. The defense has to sort out quickly which entity actually made the carrier-selection decision, because that is the entity with the real exposure, and that is the entity whose file and insurance have to carry the defense.

What This Means for Reserves and Early Case Evaluation

If you are setting reserves or evaluating a new negligent-selection claim against a broker or shipper, the old mental model, “we file the preemption motion, and this is probably gone by spring,” is obsolete. Build the evaluation around a different set of assumptions:

• Move immediately to secure the file. As soon as the claim comes in, obtain the broker’s complete carrier-selection file and all related documents: the carrier packet, authority and insurance verifications, safety-rating and inspection pulls, load paperwork, and internal communications related to the booking. These are the records plaintiff’s counsel will target in discovery, and having them in hand at intake makes an accurate early evaluation possible.

• The case will likely survive the pleading stage. Budget for discovery, corporate representative depositions, and expert retention on both carrier-safety and accident-causation questions.

  
  

• Assume the reasonable-care and causation defenses, while sound, will not be resolved until summary judgment at the earliest, and may reach trial.

  
  

• Look hard, at the very start, at the quality of the insured’s carrier file, because that file is the single best predictor of how this case resolves and at what cost.

The Bottom Line

Montgomery did not rewrite the duty a broker owes. It removed the procedural shield that kept the question of whether the broker met that duty from ever being heard. Now it is heard, in full, at length, and at cost.

The brokers who come through this well are the ones who built the file before the accident and hired counsel who can tell that file’s story after it. The ones who struggle are the ones who had a contract, no file, and a defense lawyer meeting the freight industry for the first time on the day the suit landed.

In my first post, I wrote that C.H. Robinson had a contract but, according to the complaint, did not have a file. The litigation now unfolding across the country is where that distinction gets tested. Make sure your insured is on the right side of it, and make sure the defense is built by someone who knows what they are looking at.

Ezequiel “Zeke” Moya, Jr. is a partner at Roerig, Oliveira & Fisher, LLP in the Rio Grande Valley, Texas. His practice focuses on commercial trucking and motor carrier defense, insurance defense, cross-border transportation litigation, and third-party claims administration throughout South Texas and the Texas-Mexico corridor. He represents brokers, carriers, shippers, and insurers in matters arising from commercial vehicle accidents, negligent-hiring claims, and FMCSA regulatory compliance.

This post is for informational purposes only and does not constitute legal advice. If you are facing a negligent-selection claim, or want your carrier vetting and litigation-readiness reviewed before one arises, contact a qualified transportation attorney.