Brokers Want FMCSA's Own Junk Data Turned Into a Legal Shield — At Your Expense

About 94% of active interstate motor carriers have no FMCSA safety rating at all. That's not a niche data quirk — it's the foundation of the entire system. And now the Trucking Industry Association wants FMCSA to turn that same broken system into a legal safe harbor, so brokers who check a government database before booking a load are automatically shielded from negligent-hiring lawsuits.

If it works, owner-operators who don't generate enough inspection data to score clean get cut from load boards by algorithm. No hearing. No appeal. Just a score the government's own website warns you not to trust.

The Montgomery Ruling Blew Up Brokers' Get-Out-of-Jail Card

For decades, freight brokers beat back negligent hiring claims by pointing to federal preemption under the Federal Aviation Administration Authorization Act. Federal law governs motor carrier transportation, they argued, so state tort claims against brokers are preempted. Courts often bought it. Carriers got sued; brokers got dismissed.

The Supreme Court ended that in May 2025 with a 9-0 ruling in Montgomery v. C.H. Robinson. Justice Amy Coney Barrett wrote for the unanimous Court:

"Requiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore 'concerns' motor vehicles — most obviously, the trucks that will transport the goods. So Montgomery's negligent-hiring claim falls within the FAAAA's safety exception, which saves it from preemption."

The safety exception now does the work the preemption defense used to kill. Brokers can no longer get negligent-selection claims thrown out at the pleading stage. Every carrier vetting decision is a potential litigation exhibit, and plaintiff's counsel knows it.

C.H. Robinson's CEO Told Wall Street They Would Win — Weeks Before Losing 9-0

Here's what tells you how seriously big brokers took this threat before the ruling: C.H. Robinson CEO Dave Bozeman told investors on an earnings call, just weeks before the decision dropped: "The Montgomery case is a case that we expect to win."

The Court disagreed. Unanimously.

That's not just embarrassing — it's structural. Big brokers were so certain their federal preemption shield would hold that they never built serious vetting infrastructure. The carrier purges and tightened standards that followed the ruling are reactive scrambling, not principled safety upgrades.

There's a competitive irony buried in all this. Larger brokers with mature compliance systems and audit trails are better positioned to absorb enhanced vetting costs and litigation defense. C.H. Robinson, the company that lost the case, may end up a competitive winner — because it has the infrastructure to comply while smaller brokers get crushed by the new cost structure. Insurance premiums will rise across the board, and small brokers will feel that faster than the big ones.

The Safety Data Brokers Now Want to Rely On Is Statistically Junk

After Montgomery, brokers need a defensible vetting standard. TIA's answer is to ask FMCSA to codify the agency's existing safety data as a legal safe harbor: check the government's scores before booking a carrier, and you're protected.

That would be fine if the scores were worth checking. They are not.

FMCSA's own Safety Measurement System website includes a disclaimer warning users not to draw safety conclusions from its data. A Government Accountability Office report confirmed that most carriers lack sufficient inspection data for reliable safety performance comparisons. Smaller carriers will always have fewer inspections than large fleets — because they run fewer miles and cross fewer state lines. The data problem is structural, not fixable with a software update.

Jay Grimes, OOIDA's Director of Federal Affairs, put the core problem on the record in a statement to FMCSA:

"These programs will not achieve these objectives until they incentivize actual safety performance instead of compliance. The majority of data that FMCSA collects and analyzes has no connection to crashes."

OOIDA has formally asked FMCSA to keep the CSA and SMS programs out of any new safety fitness determination methodology. A score built on inspection volume will always disadvantage carriers who don't generate enough inspections to produce a statistically meaningful result.

TIA's "Safe Harbor" Proposal Would Codify the Problem, Not Fix It

TIA's lobbying push is simple: give brokers a formal safe harbor tied to FMCSA safety data, so carriers who don't score well enough get cut without legal exposure for the broker. Check the box, book the load, call it due diligence.

Run that out for a one-truck operation. An owner-operator running regional freight in three states doesn't generate the inspection volume to produce a reliable SMS score. Under any score-based vetting standard, they will look worse on paper than a 50-truck fleet covering 40 states — not because they drive worse, but because the math requires data points they can't generate by definition.

Codifying SMS as the due-diligence benchmark doesn't raise safety. It builds a paperwork moat that lets brokers cut the smallest carriers first while pointing at a government database as justification.

The rulemaking FMCSA was expected to finalize in June 2025 still hasn't dropped. What the final rule says about what constitutes "reasonable reliance" on safety data will determine whether small carriers get a fair standard or an algorithmic exit from the load board.

What Carriers Need to Watch Before the Rules Drop

Husch Blackwell Partner Julie Maurer noted that the Montgomery ruling "does not mean automatic liability" — brokers still have to prove they acted reasonably, not just that they clicked through a government website. A safe harbor tied to SMS scores isn't the only possible outcome from this rulemaking.

Small carriers shouldn't wait to see how it shakes out before getting their own house in order. If a broker gets hauled into state court over a load, plaintiff's counsel will subpoena the carrier's qualification records as part of the negligent selection case. A complete, timestamped DQ file — maintained through something like FleetCollect's DQF Compliance Portal — is the carrier's documentation that their side of the vetting equation was done right. It won't fix a bad SMS score, but it proves the carrier wasn't the problem.

Read the actual rulemaking text when it publishes, not TIA's press release about it. The proposal that gets submitted to the Federal Register docket is public. Comment periods are real. OOIDA is already on record opposing the SMS-as-standard approach — owner-operators who agree should say so in the docket, not just in a Facebook group.

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TIA isn't asking for a safety standard. It's asking FMCSA to stamp "approved" on data the agency already admits is unreliable, so brokers can use it as legal cover to cut small carriers without ever proving those carriers were actually dangerous. Watch what gets written into the final rule. The devil won't be in the headline — it'll be in the definition of "reasonable reliance."

Photo by Lasse Nystedt on Unsplash