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Transportation Law
Hoping for a Conflict: Thoughts on When the Supreme Court Will Address FAAAA Preemption for
By Jennifer Eubanks
Broker Liability
Attorneys are no strangers to conflict. We initiate it and resolve it every day. We are comfortable managing conflict. So it should come to no one’s surprise that the defense bar representing transportation brokers is spoiling for a conflict.
  On June 27, 2022, the United States Supreme Court denied certiorari in C.H. Robinson Worldwide, Inc. v. Miller, 142 S.Ct. 2866. Miller presented the question of whether a transportation freight broker can be sued for state common law torts, specifically negligent hiring, or whether the Federal Aviation Administration Authorization Act of 1994 (“FAAAA” or “F4A”) pre-empts such claims. If the claims are preempted by the F4A, plaintiffs are not able to bring claims against freight brokers for negligent hiring, claims that are frequently made when the plaintiff’s attorney believes the case is worth more than the motor carrier’s insurance limits.
 Jennifer Eubanks
The Ninth Circuit Court of Appeals, the first federal appellate court to rule on this question, decided that the F4A applied to the claim of negligent hiring of an unsafe motor carrier in that the claim was “related to” the broker’s services. Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1025 (9th Cir. 2020). However, it held that a “safety exception” in the F4A act applied. Miller, 976 F.3d 1031. The safety exception provides that the preemption of claims does not apply to “the safety regulatory authority of a State with respect to motor vehicles.” 49 USCA § 14501(c). The Miller Court favored a broad interpretation of the safety exception, falling back on an approach the disfavors preemption. Miller, 976 F.3d 1027. Thus, the industry was left with an unfavorable decision in one circuit, and the appeal to the U.S. Supreme Court was denied.
 Since then, all eyes have been on cases coming out of other circuits, with the hope that a conflict in the circuit courts of appeal might lead to the U.S. Supreme Court taking another look. The leading contender is Ye v. Global Sunrise, Inc., 2020 WL 1042047 (N.D. Ill. March 4, 2020). In Ye, the district court granted a transportation broker’s motion to dismiss the negligent hiring claims against it based on F4A preemption. The judge found that the connection of the broker to the safety of motor vehicles was too attenuated given that the broker did not own or operate vehicles. Ye at *4. Moreover, the court found that the plaintiff was not without remedy because she could still maintain an action against the motor carrier, which

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