Defending Freight Brokers and Transportation Intermediaries After Trucking Accidents: Leveraging FMCSA Guidance

Persons injured in trucking accidents often sue brokers and other "transportation intermediaries" who can become liable under theories such as negligent hiring/negligent entrustment, vicarious liability, or by assuming liability in a contract. Plaintiffs may also allege that a shipper's improper loading of a truck contributed to the accident.

The FMCSA has published final regulatory guidance on the definitions of "brokers" and "bona fide agents," the role of dispatch services in the transportation industry, the activities of load boards, how to determine when a dispatch service is acting as a broker or bona fide agent, and factors indicating when a dispatcher does and does not require broker authority. In addition, the FMCSA clarified the final penalties for unauthorized brokerage activities.

Several circuit courts have considered whether the FAAAA preempts negligence claims against freight brokers, notwithstanding an exception under the FAAAA that preemption does not apply to "the safety regulatory authority of a State with respect to motor vehicles." The U.S. Supreme Court has declined to consider the issue on several occasions. Attorneys in this area need guidance about the scope of preemption and whether any state law causes of action remain available.

Listen as our panel of experienced trucking litigators discusses the impact of these events on claims against brokers and other transportation intermediaries.

I. Theories of liability against brokers/transportation intermediaries

II. Effect of FMCSA guidance on theories of liability and defenses

III. Recent federal and state decisions

The panel will review these and other key issues:

• How does final regulatory guidance on the definitions of "brokers" and "bona fide agents" and other matters help in defending brokers or others?
• How does the rationale in the Seventh and Eleventh Circuits compare?
• What claims are not preempted under the FAAAA?