After Montgomery, Brokers Hunt for Carrier Safety Ratings That Don't Exist

How do brokers actually tell if a carrier is safe before booking a load?

They can't. Not reliably. And after the Supreme Court's unanimous decision in Montgomery v. Caribe Transport II this spring, the inability to answer that question carries consequences brokers can no longer shrug off.

The Court resolved a circuit split over whether the Federal Aviation Administration Authorization Act preempts state-law negligent selection claims against brokers. The Ninth Circuit said the statute's safety exception preserves those claims. The Seventh said it does not. The Supreme Court 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. The substantive law of negligence did not change.

But 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 save the broker substantial sums in 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. 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.

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 the industry has grappled with for decades. There is no dependable way to gauge carrier safety at the moment of selection.

Why SMS scores and safety ratings don't measure what brokers need

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 the industry and without are pitching all kinds of paid solutions to the glaring information gap.

Most of what is being floated leans on the two things least trustworthy 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.

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.

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. FMCSA's own Volpe Center told the agency's advisory committee the same thing. A metric where a better grade predicts more wrecks is not measuring safety. It's measuring whether carriers are checking compliance boxes or not.

When folks urge FMCSA to publish SMS percentiles or otherwise use them as a barometer for carrier safety, they are asking the agency to brand carriers with the very data it has spent many years warning the public not to use this way, and for good reason. That does not fix the data problem. It exacerbates it.

Now the audit model. Currently, a carrier earns a safety rating (satisfactory, conditional or unsatisfactory) essentially one way, through a compliance review, and FMCSA performs roughly eleven thousand a year against a carrier population north of seven hundred fifty thousand. That ratio tells the story. It's why most carriers have no rating at all, why ratings issued in the 80's and 90's are still on the books, and why the agency's safety rating system draws so much ire. Any fix that relies on these ratings or contemplates some kind of expansion of them is severely short-sighted.

What other industries did when they couldn't tell good operators from bad

This is not, at bottom, a measurement problem. It's an information problem, and it has a name. In 1970 the economist George Akerlof described what he called the market for lemons, leveraging used cars to make the point. When a buyer cannot tell a good car from a bad one, he will not pay extra for quality he cannot verify, so good cars go unrewarded, manufacturers of those cars quietly leave the market, and overall quality sinks across the board. The insight earned Akerlof a share of the 2001 Nobel Prize in economics.

Carrier selection is a lemons market. A broker cannot reliably see that a carrier is safe at the moment it books loads, so safe carriers struggle to prove their worth and unsafe ones hide in the crowd. The industry has spent years trying to solve it from the inside, refining a scoring system and an audit process never really built for that job. The more useful move is to notice that other safety-critical industries faced a similar problem and handled it differently. Notably, none did it by building a bigger government grading system.

Construction handled a similar problem with the Experience Modification Rate. Every contractor carries a single number built from its actual workers' compensation loss history, calculated by a neutral bureau from claims data it cannot massage. Below 1.0 means better than average for its class, above 1.0 means worse. And it has teeth. Many general contractors and public owners will not let a subcontractor bid if its EMR sits above a set threshold. Critically, no one asked OSHA to grade every contractor. The insurance data already existed, and the industry standardized it into a figure buyers could rely on in making purchasing decisions.

Aviation handled it with the IATA Operational Safety Audit. Airlines pass a standardized audit of their safety management systems on a periodic basis, run by accredited auditors. The government is not the primary grader. Major airlines won't partner with or sell seats on another airline that hasn't passed the audit, so the commercial pressure makes it effectively mandatory, and regulators including the FAA then recognize the credential to streamline their oversight. Registered carriers have run accident rates several times lower than the rest of the industry, a gap that has held for many decades.

Maritime handled it by rating risk and matching oversight to it, and the Coast Guard does it here. Through its Port State Control program, the Coast Guard scores foreign vessels calling at U.S. ports on a risk matrix built from the operator's record, the flag, the performance of the classification society that surveys the ship, and the vessel's own history, then sends its limited inspectors to the worst performers first. Its Qualship 21 program runs the other side of that logic, rewarding the vessels with the strongest records with lighter, less frequent exams. And on the domestic side the Coast Guard goes further still. A towing company can earn its certificate either through direct Coast Guard inspection or through a safety management system audited by an accredited third party under Coast Guard oversight.

Three industries, one pattern. A trustworthy signal built from real safety outcomes, a market that requires it because the parties relying on it have money at stake, and a government that sets the floor and polices the scorekeepers.

What a real carrier safety score would look like

Two pieces do most of the work. A score that measures what a carrier has done, and a credential that measures how a carrier operates. They answer different questions, they cover each other's gaps, and neither asks the government to do something it cannot.

Start with the score. Picture something a broker pulls up in seconds, the way it already pulls a carrier's authority and insurance. Not a percentile that ranks a carrier against a shifting peer group, but a measure built from the carrier's own safety outcomes, similar to an EMR or credit rating. The inputs are the things that actually track with crash risk. How often the carrier has crashed, adjusted for the crashes it could not have prevented. What its roadside inspections turn up, weighted toward the violations serious enough to put a truck or a driver out of service rather than the paperwork issues that do not. And, where it can be obtained, its insurance loss experience.

The FAST Act directed FMCSA in 2015 to build a Beyond Compliance program crediting carriers for safety investments above the minimum, and the agency's own advisory committee recommended that a third party, not FMCSA, administer it. The National Academies pointed toward a statistical model borrowed from other fields. Each time, though, the conversation snapped back to SMS as the engine, keeping the industry in a decades-long feedback loop that has produced no fruit worth eating.

What brokers should check right now while the industry figures this out

Until a real carrier safety signal exists, brokers booking loads need to run the verifications that actually correlate with risk. Pull the carrier's FMCSA authority and insurance. Check the out-of-service rate, not the SMS percentile. Ask for the carrier's insurance loss runs if the load is high-value. Verify the driver's CDL is valid and the truck is registered. When vetting carriers online, collect the W-9, the MC-150, and the certificate of insurance in one pass so you have the paper trail if the load goes sideways.

The Montgomery decision did not create a new duty. It removed the procedural shortcut that let brokers avoid proving they met the old one. The industry has spent decades trying to solve carrier selection with a government scoring system that the government itself says does not measure safety. The answer is not a bigger version of the same system. It's a different institutional structure, one that borrows from industries that already solved this problem and puts real safety outcomes at the center.