After Montgomery, Everyone Wants to Rate Carrier Safety. We’re Looking in the Wrong Place.

(The views expressed here are solely those of the author and do not necessarily represent the views of FreightWaves or its affiliates.) A broker has a load and three carriers willing to haul it. Which one is safe? For all the data our industry supposedly drowns in, there is still no dependable way to answer that question.

And after this spring, the inability to answer it carries consequences that are harder to shrug off. Two readings of the Supreme Court’s decision in Montgomery v. Caribe Transport II are making the rounds, and both are wrong. The first suggests the Court made brokers liable whenever a carrier they hired crashes.

The second, a reaction to the first, says nothing of substance changed. As usual, the truth sits between them. Start with what the Court did not do. It did not announce a new duty of care, declare brokers automatically liable, or set any national standard for carrier vetting.

It resolved a split among the federal circuits over one question, whether the Federal Aviation Administration Authorization Act preempts state-law negligent selection claims against brokers.

The Ninth Circuit had said the statute’s safety exception preserves those claims, the Seventh had said it does not, and the Supreme Court unanimously sided with the Ninth. A plaintiff still has to prove the broker was negligent under ordinary state negligence principles, and a broker that vetted reasonably still has every right to prevail in the case.

The substantive law of negligence did not change. But anyone telling you the decision changed nothing is overcompensating.

In roughly half the country, courts had treated FAAAA preemption as a complete defense, a way to get a negligent selection suit dismissed at the earliest stages of litigation and saving the broker substantial sums in litigation defense costs. That defense is gone.

In those jurisdictions, the claims now survive the motion to dismiss and head much deeper into litigation, including expensive discovery, unless they settle sooner. And because ordinary care is a question of fact for a jury rather than a question of law a judge can resolve on the papers, there’s a real risk these cases run all the way to trial.

That’s not nothing. So the significance of Montgomery is not a new rule of liability. It’s that the decision removed the procedural exit ramp that let many brokers avoid thinking too hard about carrier selection. At the same time, it left exposed a serious problem our industry has grappled with for decades.

There is no dependable way to gauge carrier safety at the moment of selection. A reliable signal, built on the wrong foundation Predictably, the scramble to fill the void is underway. Brokers, through the Transportation Intermediaries Association, have petitioned FMCSA for a federal carrier selection standard and a public list of high-risk carriers.

The Truckload Carriers Association has urged the agency to modernize how it determines safety fitness. And opportunists from within our industry and without are pitching all kinds of paid “solutions” to the glaring information gap. I share the urgency, but I don’t share the instinct about where to find the answer.

Most of what is being floated leans on the two things I trust least when it comes to measuring carrier safety: FMCSA’s Safety Measurement System (SMS) data and its safety fitness determinations stemming from compliance reviews and focused audits. Take the data first. The most persuasive critic of using SMS to judge carrier safety is FMCSA itself.

After three trucking associations sued over the public display of CSA data, the agency settled in 2011 and posted a disclaimer that still sits on the SMS website today.

It tells prospective consumers of that data the scores are performance data the agency uses to decide whom to monitor, that a flag is “not intended to imply any federal safety rating” under 49 U. S. C. 31144, and that readers “should not draw conclusions about a carrier’s overall safety condition” from the data.

Congress drove the point home in the FAST Act of 2015, pulling the property carrier percentiles from public view and ordering a National Academy of Sciences review of the system.

The Government Accountability Office had already found, in 2014, that most of the violations feeding the scores occur too rarely to correlate reliably with crash risk and that the agency lacks enough inspection data to compare most carriers with confidence.

To drive this point home, when the American Transportation Research Institute ran CSA scores against actual crash data back in 2012, it found the Driver Fitness BASIC inversely correlated with crashes, with carriers that scored better crashing more, not less. And FMCSA’s own Volpe Center told the agency’s advisory committee the same thing. Read that again.

A metric where a better grade predicts more wrecks is not measuring safety. It’s measuring whether carriers are checking compliance boxes or not. So, when folks urge FMCSA to publish SMS percentiles or