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.

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.”