It isn’t often you find Texas Attorney General Ken Paxton and New York Attorney General Letitia James on the same side of an issue.
But that pairing and numerous others that cross the political divide among the attorneys general of red and blue states and the District of Columbia can be found over the issue of broker liability.
There are 29 Attorneys General who signed their names on to an amici curiae brief filed this week in the case of Montgomery vs. Caribe. That is the case before the Supreme Court expected to yield a legal precedent over whether the safety exception found in the Federal Aviation Administration Authorization Act, known as F4A, can bring in a broker as a defendant in legal actions like a tort.
Ohio Attorney General Dave Yost is the lead AG in the filing, which makes a total of 30 AGs on the brief.
And what do the Attorneys General want? Based on the brief, they want a finding by the Supreme Court that brokers do not have protection from state tort action under the safety exception of F4A.
The James-Paxton pairing reflects the broad ideological spectrum of the Attorneys General on the amicus brief. Others besides Paxton and James have national profiles; from the right, Kris Kobach of Kansas is there. On the left, Rob Bonta from California can be found among the names.
Five amicus briefs in support of Montgomery
The Attorneys General’s action is one of five amicus briefs submitted to the court Monday in support of Shawn Montgomery. Montgomery’s truck was on the side of an Illinois highway when it was struck by another truck driven by Caribe Transportation, hired to move a load by C.H. Robinson. Montgomery’s injuries were severe enough to lead to an eventual leg amputation.
The resulting litigation in the Seventh Circuit tossed out C.H. Robinson as a defendant. As it had earlier done in the case of Ye vs. GlobalTranz, the 7th Circuit found that the safety exception of F4A that allows state torts to proceed against transportation companies can not include brokers as a target.
F4A prohibits state action that might impact a transportation “price, route or service.” But the safety exception allows a state action, like a tort, to proceed if it is “with respect to motor vehicles.” Conflicting circuit court decisions on whether the phrase “motor vehicles” includes brokers is why the case is before the Supreme Court.
Awaiting C.H. Robinson’s brief
The “other side” of Montgomery vs. Caribe before the Supreme Court is not the latter party. (Caribe is still listed as active with the Federal Motor Carrier Safety Administration, but with only one power unit). Rather, it is C.H. Robinson (NASDAQ: CHRW). The 3PL will be filing the response to Montgomery’s brief, with a deadline of January 14.
The core message of the Attorneys General is that the issue of broker liability poses a significant question of federalism and the ability of the federal government to preempt state action.
The Supreme Court, the states’ brief says, “has instructed courts to be cautious before displacing state law with federal law, especially in domains that are traditionally regulated by the states.” And one of those areas, the brief says, is “the quintessential tort, a motor vehicle accident.”
The states’ brief says Congress made clear the states’ “traditional role of regulating road safety” in the statute governing the federal jurisdiction over intrastate transportation.
Congress’ goal in F4A, according to the states, was to guarantee that the economic deregulation of transportation which developed in the late 70’s and early 80’s not be undercut by state action. Given that, the states say in the brief, F4A is “aimed at economic deregulation, (and) cannot substitute for state road-safety laws.”
The intention of Congress
The 7th Circuit in Montgomery, the state AGs said, “got the answer wrong when it comes to whether the Act preempts the States’ road-safety laws.”
The combination of F4A and its limitations, and the safety exception, led the Attorneys General to argue that “these provisions show that Congress did not envision removing the states from their traditional role of regulating safety, and protecting their citizens, on roadways with a statute aimed at deregulating economic barriers to interstate commercial transportation.”
“Robust tort systems, in particular, offer injured drivers and passengers recovery against negligent motorists,” the states say in their brief. “Indeed the public looks to state law to understand the rules of the road. And it looks to state tort law to vindicate injuries caused by drivers that break the rules of the road.:”
The Restatement of Torts, described as a “series of treatises” that was published by the American Law Institute, is cited at several points by the states’ brief.
It says the Restatement’s “basic element” is that “an employer is subject to liability for physical harm to third persons caused by his failure” to take steps to keep its workers safe.
“The tort aims to protect the motoring public from unfit truckers—those who have a track record for unsafe driving, a prior history of safety violations, or lack the necessary qualifications—put in charge of transporting heavy commercial loads,” the brief says.
The safety exception does not specifically exclude brokers from making a path toward lawsuits. It refers only to motor vehicles even though the broader federal law that includes F4A does have a specific section that limits other state action against brokers and freight forwarders. But it’s separate from the safety exception.
That lack of a specific reference to brokers has been a key part of the debate, which the states weighed in on. Omission, they argue, is relevant. ”(F4A) contains no clear statement that Congress intended to preempt personal-injury claims of negligent selection against brokers,” they write.
Cox weighs in
One of the other briefs was submitted by Robert Cox, widower of Greta Cox whose own case on broker liability, Cox vs. Total Quality Logistics, is sitting in front of the Supreme Court seeking certiorari on the issue. Greta Cox was killed in a crash involving a truck hired by TQL.
The key difference is that Cox prevailed at the Sixth Circuit, with the appellate court finding TQL was not protected by F4A’s safety exception.
It is assumed by trucking industry attorneys that a Supreme Court decision on granting Cox certiorari is on hold while it deals with the same issues in Montgomery.
Cox’ brief largely argues that the Supreme Court should follow the legal findings in his Sixth Circuit decision, which would reduce protection for brokers under the safety exception.
Other briefs submitted this week were from a group that includes the Truck Safety Coalition, Parents against Tired Truckers and Citizens for Reliable and Safe Highways; Gergana Franco, who is involved in a lawsuit against Jack Cooper Transport, which no longer operates, in a case involving preemption under F4A; and a group of attorneys and law professors who filed under the name of the Preemption Scholars.
That latter group said its interest is in “the constitutional importance of maintaining the States’ vital role in our federalist structure.” A subhead on one of its arguments is that “The Seventh Circuit Over-Read the Scope of Federal Preemption Under the FAAAA.”
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