Attorneys representing freight brokers in personal injury lawsuits like to tell plaintiffs’ attorneys in those lawsuits that their clients’ claims are preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. Section 14501 (FAAAA). Going one step further, attorneys for brokers often urge plaintiffs’ attorneys to drop their clients’ negligence claims or voluntarily dismiss them if they’re already in suit. After a perfunctory research process, some plaintiffs’ attorneys may honor those requests.

They shouldn’t any longer.

Earlier this year, the New Jersey Superior Court in Mercer County held in Estate of Russo v. EPES Logistics, No. MER-L-170-21, which was consolidated with Elsowiny v. EPES Logistics, No. MER-L-1549-21—a case in which my law firm represented the plaintiff—that the FAAAA did not preempt state negligence claims against freight brokers. In issuing what is apparently the first New Jersey court decision on this issue, the Superior Court has confirmed that the state’s courthouse doors remain open for individuals injured by freight brokers’ negligence.

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An FAAAA Primer

The FAAAA, enacted in 1994, was intended to create an efficient, competitive, and deregulated national transportation industry. Section 14501(c)(1) prevents states, political subdivisions, or political authorities of two or more states from enacting any “law, regulation, or other provision having the force and effect of law related to price, route, or service of any motor carrier ... broker, or freight forwarder with respect to the transportation of property.”

Section 14501(c)(2)(A) carves out an exception to 14501(c)(1). Known as the “safety exception,” (c)(2)(A) states that (c)(1) “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” The statute defines a “motor vehicle” as a “vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Secretary ...” The U.S. Supreme Court held in Columbus v. Ours Garage & Wrecker Service, 536 U.S. 424 (2002), that “Congress’ clear purpose in Section 14501(c)(2)(A) is to ensure that its preemption of states’ economic authority over motor carriers of property, Section 14501(c)(1), ‘not restrict’ the preexisting and traditional state police power over safety.”

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The Superior Court Holds the FAAAA Does Not Preempt Negligence Claims Against Freight Brokers

Estate of Russo v. EPES Logistics and Elsowiny v. EPES Logistics arose from a fatal three-vehicle collision on Route 130 in Robbinsville, New Jersey, on Oct. 29, 2020. The collision involved a tractor trailer owned by Contractual Carriers, a Chevy Camaro driven by our client Aiman Elsowiny, and a box truck operated by the decedent Francesco Russo. EPES Logistics is a commercial freight broker that arranged the shipment of goods carried by Contractual Carriers’ tractor trailer, and was named as a defendant in the subsequent legal proceedings initiated by Russo’s widow and Elsowiny.

In denying EPES Logistics’ motion to dismiss, the Superior Court in an oral decision held that the FAAAA did not preempt the plaintiffs’ state law claims. Noting that neither the New Jersey Supreme Court, the New Jersey Appellate Division, nor the Third Circuit had ruled on this issue, Judge Douglas H. Hurd relied on federal law for guidance.

After acknowledging the U.S. Supreme Court’s guidance from Columbus that I excerpted above, the court looked to several federal decisions, notably Miller v. C.H. Robinson Worldwide, 976 F.3d 1016 (9th Cir. 2020), Ye v. GlobalTranz Enterprises, 74 F.4th 453 (7th Cir. 2023), and Mann v. C.H. Robinson Worldwide, Nos. 7:16-cv-00102, 7:16-cv-00104, 7:16-cv-00140 (W.D. Va. 2017).

In Miller, the Ninth Circuit held the FAAAA’s safety exception permitted state law negligence claims against freight brokers. Specifically, the court held “[t]here is no question that common-law claims ... are within the scope of the preemption clause,” and that “‘the safety regulatory authority of a state’ encompasses common-law tort claims.”

In Ye, the Seventh Circuit held the safety exception did not prohibit the preemption of a negligent hiring claim against a freight broker under the FAAAA. The court rested its holding on its conclusion that “the exception requires a direct link between a state’s law and motor vehicle safety.” The court saw “no such direct link between negligent hiring claims against brokers and motor vehicle safety.”

In Mann, the court there concluded that the plaintiffs’ negligent hiring claims were not preempted. First, the court held a personal injury suit for negligent hiring “does not have anything more than a ‘tenuous, remote, or peripheral’ connection to the ‘price, route, or service’” of a freight broker. Second, the court held that if the negligent hiring claim sufficiently impacted the price, route, or service of a broker, it would not be preempted because it would fall within the safety exception.

After reviewing the above cases and others regarding FAAAA preemption in connection with negligence claims against freight brokers, the Superior Court held the plaintiffs’ claims fell within the safety exception’s framework that section 14501(c)(1)’s prohibition “not restrict the safety regulatory authority of a state with respect to motor vehicles.”

Specifically, the court held that the safety exception’s language recognizes that a state’s regulatory authority includes common-law tort claims because they are a critical component of a state’s traditional ability to protect the health and safety of its citizens. Additionally, the court held that regarding Section (c)(2)(A)’s language of “with respect to motor vehicles”—which the court interpreted as “concerning motor vehicles”—a claim seeking damages for negligently operating a vehicle is a claim “with respect to” or “concerning” the safe operation of motor vehicles.

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NJ Case Law Favors Denying the FAAAA’s Preemption of Common-Law Negligence Claims

As evidenced by the decisions Hurd cited in Russo/Elsowiny, the federal case law on FAAAA preemption and its safety exception is inconsistent. There’s a circuit split on this issue, though the U.S. Supreme Court doesn’t appear to be motivated to resolve it. This past January, the Supreme Court refused to take up a petition of certiorari for the Seventh Circuit’s Ye v. GlobalTranz Enterprises decision. That would have provided an opportunity to resolve the split, but that wasn’t the Supreme Court’s first opportunity to decide this issue. In July 2022, it refused to review the Ninth Circuit’s decision in Miller v. C.H. Robinson Worldwide.

In addition, several state courts have issued FAAAA preemption and safety exception decisions. The majority of these decisions have denied preemption.

Hurd’s decision in Russo/Elsowiny isn’t, of course, binding on other New Jersey courts. But his decision is, to our knowledge, the first New Jersey court decision to rule on FAAAA preemption regarding common-law negligence claims against freight brokers, and the decision favors denying preemption.

Thus, the next time a plaintiff’s attorney sends a demand to a freight broker’s counsel regarding a negligence claim, the attorney should not take defense counsel’s bait about dropping their client’s claim. In fact, if a plaintiff's attorney puts their client’s claim in suit, there’s a good chance it will survive a motion to dismiss and perhaps a motion for summary judgment.

Thanks to the Russo/Elsowiny decision, for the moment, the days of New Jersey plaintiffs’ attorneys having no persuasive New Jersey case law to rely on when countering freight brokers’ counsel’s attempts to get them to drop their clients’ negligence claims are over.

Tyler J. Hall, an attorney at RAM Law in Somerville, represents injury victims and their families in truck and bus crash litigation. He has been certified by the Supreme Court of New Jersey as a Civil Trial Attorney and is Board Certified in Truck Accident Law by the National Board of Trial Advocacy. He can be reached at [email protected].