The Standard of Care After Montgomery: What "Reasonable" Carrier Vetting Looks Like

The black hole problem

Justice Kavanaugh identified the core issue in his concurrence: brokers currently operate in a regulatory vacuum when it comes to carrier safety selection.

"The relevant regulatory agency, the Federal Motor Carrier Safety Administration, requires brokers to select a federally registered carrier but does not otherwise impose safety standards on broker hiring."

— Justice Kavanaugh, concurring, Montgomery v. Caribe Transport II (2026)

Read that again. FMCSA requires you to pick a registered carrier. That's it. There is no federal standard for what "safe enough" means. No required percentile threshold. No mandated monitoring frequency. No prescribed documentation format.

The Court filled this gap with state tort liability. The standard of care will now be defined by juries, case-by-case, state-by-state. Unless you define it yourself — clearly, consistently, and with documentation — you're leaving your defense to the unpredictability Kavanaugh warned about.

What "reasonable" probably means

While no court has yet defined the post-Montgomery standard of care for broker carrier selection, we can infer from the opinion, the concurrence, and existing negligent-hiring case law what a jury would likely expect:

The "minimum standard" column is what most brokers do today. The "best practice" column is what a plaintiff's attorney will argue you should have done. The gap between those columns is your litigation exposure.

The Montgomery fact pattern as a template

Look at what Montgomery alleged about C.H. Robinson's selection of Caribe Transport. The carrier had a "conditional" safety rating from FMCSA and was found deficient in:

• •Qualification of drivers
• •Hours of service of drivers
• •Inspection, repair and maintenance
• •Recordable crash rate

This is publicly available information. The Court's reasoning implies that if this data was available and you didn't check it — or checked it and tendered anyway without documented justification — you failed the standard of care.

Building a defensible vetting process

Based on the Court's reasoning, here's a framework that would likely satisfy the "reasonable care" standard:

What threshold should you set?

There's no legally mandated threshold. But FMCSA's own intervention thresholds provide a natural baseline:

• • Conservative: No BASIC above 50th percentile. This is stricter than FMCSA and demonstrates proactive safety culture.
• • Moderate: No BASIC above the FMCSA intervention threshold (65th for UD/HOS, 80th for VM/CS/DF). This matches the regulator's own standard.
• • Minimum defensible: No carrier with an active FMCSA alert (above intervention threshold). This is the floor — anything less is hard to defend.

Whatever threshold you choose, document it as written policy, apply it consistently, and document exceptions with reasoning. Inconsistent application is worse than a lenient threshold — it shows you knew the risk and chose to ignore it selectively.

The plaintiffs' bar is already moving

Montgomery was decided three days ago. Plaintiff's attorneys who specialize in trucking litigation are already updating their complaint templates. The first post-Montgomery negligent-selection lawsuits against brokers will be filed within weeks — likely in plaintiff-friendly jurisdictions with high damage caps.

When those cases go to discovery, the first document request will be: "Produce all records of carrier safety vetting for [carrier] at or before the date of tender." If your answer is "we checked their authority was active" — that's the minimum. If your answer is "here's a timestamped safety assessment showing all 5 BASIC percentiles, alert status, and our documented threshold policy" — that's a defense.

Define your standard now

The standard of care after Montgomery will be defined by whoever gets there first — either you, with a documented and defensible process, or a plaintiff's expert witness testifying about what you should have done. One of those outcomes costs you $499/month. The other costs you millions.