Will freight brokers go broke? An analysis of the Supreme Court’s recent decision and its potential effect on non-economic damages in West Virginia
In 1994, Congress enacted the Federal Aviation Administration Authorization Act (“FAAAA”), which preempts certain state regulations involving the transportation industry, including regulations affecting motor carriers and freight brokers. One exception to the FAAAA’s preemption provision—the safety exception—provides that the preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). Over time, a circuit split developed as to whether the FAAAA’s preemption provision precludes claims seeking to hold freight brokers liable for the tortious acts of motor carriers they contracted for transport. However, in May 2026, the Supreme Court in Montgomery v. Caribe Transport II LLC held, in a 9-0 decision, that freight brokers fall within the FAAAA’s safety exception and may be held liable for the negligent hiring of a motor carrier.
The Supreme Court’s analysis turned on the phrase “with respect to motor vehicles” within the FAAAA’s safety exception. The Court interpreted that phrase as broad enough to encompass a freight broker’s decision to contract with a motor carrier. This ruling has changed the landscape of motor carrier litigation by placing freight brokers on notice that they may be liable for the acts of motor carriers they hire to transport freight. While the decision will have significant implications nationwide, an important question remains: how will it affect West Virginia?
Since 2024, West Virginia Code § 55-7-32 has capped non-economic damages in personal injury and wrongful death claims against an “employer defendant” involving a commercial motor vehicle at $5 million. In light of the Supreme Court’s decision in Montgomery, courts and the West Virginia Legislature will now be tasked with determining whether this statutory cap extends to freight brokers in the same manner it applies to commercial motor carriers. The statute’s application turns on the meaning of “employer defendant.” West Virginia Code § 55-7-32 defines an “employer defendant” as:
(A) the owner of a commercial motor vehicle; (B) the employer of the person operating a commercial motor vehicle; or (C) any other person or entity that owns, leases, rents, or otherwise holds or exercises legal control over a commercial motor vehicle or operator of a commercial motor vehicle.
At first glance, the statute may not appear to apply to freight brokers because freight brokers typically act as intermediaries between shippers and motor carriers or independent contractors, rather than as employers of the drivers or motor carriers themselves. However, when the statute was enacted, the Legislature likely was not contemplating freight-broker liability in this context because existing interpretations of the FAAAA did not expressly provide for liability against freight brokers regarding negligent hiring.
Perhaps more importantly, claims for vicarious liability against freight brokers provide important context in determining what constitutes an “employer defendant” and its applicability to freight brokers. Vicarious liability is a cause of action that seeks to hold an employer liable for the tortious acts of an employee committed within the scope of employment. Over the years, federal district courts, including the Southern District of West Virginia, have permitted plaintiffs to assert vicarious liability claims against freight brokers. Stated differently, courts have not categorically held that freight brokers can never qualify as employers of commercial drivers or motor carriers for liability purposes. As such, although the statute does not expressly reference freight brokers, existing case law suggests that its application may entitle freight brokers to fall within the statute’s broader concept of an “employer defendant.”
Ultimately, the Supreme Court’s decision in Montgomery presents a new and significant question for courts and West Virginia lawmakers: whether freight brokers, now potentially exposed to negligent hiring liability under the FAAAA’s safety exception, may also invoke West Virginia’s statutory cap on non-economic damages in commercial motor vehicle cases. Although West Virginia Code § 55-7-32 does not expressly reference freight brokers, its broad definition of “employer defendant,” when considered alongside existing precedent, may support extending the cap to freight brokers in appropriate cases. This nuanced interplay among statutory text, legislative intent, regulatory definitions, and existing case law sets the stage for future litigation over whether freight brokers should receive the same statutory protection afforded to traditional motor carriers and employers in commercial motor vehicle cases.
