The Defense Just Got Specific

Within twenty-four hours of the Supreme Court's decision in Montgomery v. Caribe Transport II, LLC, a major insurance broker watched one of its quotes get pulled and re-priced. Same business. Same risk profile on paper. Same coverage. Premium up roughly three and a half times.

The market is not waiting for the legal commentary to settle. It is repricing risk now. And the repricing is moving up the chain — past brokers, toward freight forwarders, and toward the enterprise shippers that hire them.

This is the moment to understand what the Court actually decided, who is actually in the path of what comes next, and what the Court itself defined as a working defense.

What the Court Actually Decided

On May 14, 2026, the Supreme Court issued a unanimous ruling in Montgomery v. Caribe Transport II, LLC. Justice Barrett delivered the opinion. The Court held that the Federal Aviation Administration Authorization Act's safety exception does not preempt state-law negligent-selection claims against freight brokers.

In plain English: before Montgomery, a broker facing a wrongful-death or serious-injury lawsuit could often get the case thrown out before discovery by arguing federal preemption. That shield is now gone in every state.

A few clarifications, because the headlines have been doing the ruling a disservice.

The decision does not automatically make brokers liable for every accident involving a carrier they selected. Negligence still has to be proven. What the ruling did was open the courthouse door. The fight now happens inside that door, not at it.

More importantly, the Court told the industry exactly how to win that fight. Justice Kavanaugh, joined by Justice Alito, wrote a concurrence that has been under-discussed in the early commentary. They were explicit on a point that has since become the centerpiece of the defense bar's response — that the ruling, in Kavanaugh's words, "should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents." A broker — or, by the same logic, any other party that selects a carrier — should be able to defend successfully if it acted reasonably, arranged transportation with reputable companies, and can show its work.

That single sentence is the defense playbook. Reasonable. Documented. Reviewable.

And the ruling formally addresses brokers, not forwarders and not shippers. But the legal logic does not stop at brokers, and that is not a stretch made by post-ruling commentators. In his concurrence, Justice Kavanaugh himself acknowledged that the same carrier-selection responsibility extends to 3PLs, freight forwarders, and digital freight platforms — to anyone in the supply chain who selects a carrier and has access to publicly available safety data. The opinion is written about brokers because the petitioner was C.H. Robinson, a broker. The principle the Court articulated — ordinary care in carrier selection — does not stop at the brokerage license.

Which leaves one question hanging over all of it. What does reasonable actually mean when ninety-four percent of US motor carriers have no FMCSA safety rating at all, and FMCSA itself states that its rating "does not necessarily reflect the safety of a carrier when operating in interstate commerce"?

Why Forwarders and Shippers Are Next

The plaintiff bar has been refining a new theory for the better part of a year, waiting for Montgomery to land. The theory is short. You hired the wrong broker. If you had not, this accident would not have happened.

That sentence is built to climb the procurement chain.

The economics of why it climbs are not subtle. Most US freight brokers operate on a seventy-five-thousand-dollar surety bond. That bond does not cover tort liability. Median nuclear verdicts in trucking are now around thirty-six million dollars, and thermonuclear verdicts above one hundred million are no longer rare. When a broker is exhausted as a defendant — and many will be — the next deepest pocket is the forwarder that subcontracted to that broker, and the shipper that retained that forwarder.

Freight forwarders carry similar exposure for similar reasons. Forwarders make the same operational decisions brokers do: selecting carriers, routing freight, allocating capacity. Under 49 U.S.C. §14501(b), forwarders sit in the same federal preemption framework as brokers. The legal argument that opened brokers to state tort claims applies cleanly to forwarders. Forwarders also frequently contract directly with shippers, meaning they are both a target in their own right and the documentation point that shippers will rely on as part of their own defense.

Shippers are not insulated either, though many of their general counsels still talk as if they are. The structural shift of the past two decades — away from private fleets, toward brokers, 3PLs, 4PLs, and managed transportation providers — has lengthened the procurement chain. Every additional link is one more decision a plaintiff can attack. You hired the wrong forwarder. The forwarder hired the wrong broker. The broker hired the wrong carrier. A person died.

The political wind is at the plaintiff bar's back. Transportation Secretary Duffy has already publicly signaled, in other contexts, that shippers should bear some accountability for carrier safety conditions. Whether or not one agrees with that policy direction, it is now part of the conversation. And juries read the news.

The Information Vacuum at the Center of Carrier Selection

Here is the paradox that defines the entire problem, and that very few of the post-Montgomery commentaries have stated directly.

The Supreme Court has now told brokers — and by extension, anyone who selects carriers — to act reasonably and select reputable companies.

FMCSA, the agency responsible for certifying carrier safety, has stated on its own public-facing materials that its safety rating does not necessarily reflect actual safety.

Ninety-four percent of motor carriers operating in the United States have no FMCSA safety rating at all. Most have never been audited. Many have never been inspected.

International Road Check, the standardized commercial vehicle inspection event run by CVSA, has consistently produced out-of-service rates in the range of one in three for inspected vehicles. The roads contain a population of carriers whose actual safety is, in the literal sense, unknown.

This means there is no authoritative source of truth that a forwarder, a shipper, or any other party in the chain can rely on to say "we used the carrier the government certified as safe." The government has openly admitted it cannot tell you. The carrier vetting platforms that have grown up in the past decade — and there are good ones — explicitly disclaim in their own terms of service that they are verifying identity and authority, not certifying safety.

The decision about whether a carrier is acceptable falls back, every time, onto the party hiring the carrier. And after Montgomery, that decision has to be defensible after an accident, not before.

Which means the defense is not a single carrier check. The defense is a process. Applied uniformly. Documented at the moment of the decision. Reviewable by a third party.

What "Reasonable Care" Will Actually Look Like

Pulled together from the Montgomery concurrence, the days of legal analysis that have followed, and the language plaintiff attorneys are already using in filings, the working definition of reasonable care in carrier selection is forming around five elements.

• A written carrier qualification policy with objective criteria. Not informal rules of thumb. Not "we usually look at" or "our team generally avoids." A policy that another person — an underwriter, an auditor, a plaintiff's expert — can pick up and apply themselves and reach the same conclusion.
• Uniform application of that policy. Inconsistency is itself evidence of negligence. A jury reviewing a thousand carrier selections wants to see the same logic applied each time. The single deviation — the one carrier that was selected despite failing the policy because someone needed capacity that week — is the deviation that becomes Exhibit A.
• Use of the best available tools at the time of the decision. Plaintiff's counsel will ask the question every time, in every deposition: a better data source was available, a better model was available, why did you not use it? The standard moves with the technology. What was reasonable in 2019 is not reasonable in 2026.
• A contemporaneous audit trail. Not a file reconstructed after an accident. Not a record built by someone walking back through emails and spreadsheets weeks later, trying to remember the reasoning. A record created at the moment of the operational decision, time-stamped, with the inputs and the reasoning preserved.
• Reviewability by third parties. Insurance underwriters, regulators, plaintiff's experts, and courts must be able to look at the record and see how the decision was made — without relying on the operator to interpret it.

It is worth being direct about where the existing tools fall short of all five.

Carrier identity and authority platforms verify who a carrier is. They do not capture whether the decision to use that carrier was sound. Spreadsheets and ad-hoc records cannot prove uniform application across thousands of decisions. Email trails are not structured operational decisions; they are conversations about decisions. Internal procurement systems frequently record outcomes — who was selected, what they were paid — but not the reasoning that produced the outcome.

The gap is specific. There is no standard operational layer that captures the decision itself — the inputs considered, the policy applied, the alternatives evaluated, the reasoning followed — at the moment it happens, across every operational decision a forwarder or shipper makes.

That gap is what Montgomery makes expensive.

The Operational Record as Insurance Defense

The 3.5x premium increase that opened this article is not a market overreaction. It is a market doing exactly what markets do when underwriters cannot assess the risk they are being asked to price.

Insurance pricing is a function of information. Post-Montgomery, underwriters are being asked to insure a category of risk — broker liability, and soon forwarder and shipper liability — that has just been radically expanded in scope and that they have very little ability to assess from the outside. So they price the uncertainty.

A forwarder or shipper that can demonstrate a documented, consistent operational decision process to its underwriter changes the conversation. It is not a different risk profile in the abstract — it is the same risk profile, but now legible. The pattern is not new. The same dynamic took hold in financial services after Sarbanes-Oxley: operational documentation became an insurance pricing variable, and the firms that built defensible internal controls early paid materially less than those that did not.

Three things the operational record needs to do to function as defense.

• It needs to show that a given carrier selection — or, for a shipper, a given broker or forwarder selection — was made against a documented standard.
• It needs to show that the same standard was applied uniformly across other comparable decisions, not invented for the case in front of the court.
• It needs to be exportable in a form that an insurer, a regulator, or opposing counsel can review without depending on the operator to interpret it.

This is where Stargo's category of solution enters the picture. StarDox is an operational AI platform that captures the operational decision, the inputs that drove it, the policy applied, and the reasoning preserved — at the moment of the decision, not reconstructed after. The record is structurally consistent across thousands of decisions, which is what makes uniform-application defenses possible. It is exportable to underwriters, to auditors, to counsel.

This is not vetting. This is not identity verification. Those are inputs. This is the operational layer that the Montgomery concurrence implicitly described as the defense — the record of how the decision was actually made.

What This Means for the Next Twelve Months

Montgomery did not create new risk. The risk has been there for years, building slowly, while a patchwork of circuit-level rulings let some brokers and forwarders pretend it was somebody else's problem. What Montgomery did was surface the risk, give plaintiff attorneys a clear path to it, and in the same ruling, tell the industry exactly how to defend itself.

Forwarders and shippers that act on this now — building defensible operational records before they need them as defense — change their position in three markets at once.

• Insurance, because the documentation changes the underwriter's risk model.
• Litigation, because the documentation is the defense the Court itself described.
• Procurement, because shippers are already pushing stricter vetting standards, insurance verification, audit rights, and indemnification language into their forwarder and broker contracts — and the operators that can demonstrate a defensible process will win those negotiations against the ones that cannot.

The shift is happening. The question is whether you are building the record now, while you have time, or after, when you do not.

If you want to talk about what an operational record layer looks like in practice for a freight forwarder or an enterprise shipper, we are happy to have that conversation.

Sources

• Montgomery v. Caribe Transport II, LLC, No. 24–1238, 608 U.S. ___ (2026). Supreme Court opinion delivered by Justice Barrett. Concurrence by Justice Kavanaugh, joined by Justice Alito.
• Heavy Duty Trucking. Supreme Court Ruling Puts Freight Broker Vetting Practices in Spotlight. May 14, 2026.
• Landline Media. Supreme Court just raised the stakes for freight brokers hiring unsafe carriers. May 2026.
• Trucking Dive. Supreme Court delivers sweeping decision against CH Robinson. May 2026.
• CarrierBook. What Montgomery v. Caribe Means for Brokers. Legal analysis, May 2026.
• Beinsure. Freight brokers face new insurance gap after Supreme Court ruling. Coverage of surety bond limits and nuclear verdict data.
• Commercial Carrier Journal. High court holds brokers accountable for hiring unsafe carriers. May 2026.
• FreightWaves Freight Expectations podcast, May 15, 2026. Discussion with Matt Leffler, Craig Fuller, and Ken Adamo, including the 3.5x premium re-trade anecdote, the 94% no-rating figure, and the emerging "you hired the wrong broker" plaintiff theory.
• American Transportation Research Institute (ATRI). 2024 Analysis of the Operational Costs of Trucking — insurance cost benchmarks.
• Federal Motor Carrier Safety Administration. Public statement on the limitations of the federal safety rating.