Montgomery Revives Broker Negligent Selection Claims
The Supreme Court's decision in Montgomery v. Bobby D. Reynolds & Co. revived negligent selection claims against freight brokers by holding that state common law duties survive federal preemption when they arise from the broker's independent relationship with the customer, not from statutory obligations. That reasoning maps directly onto AI legal services brokers, which function as intermediaries who select, match, and retain attorneys or automated tools on behalf of clients. If an AI broker screens lawyers for competence, monitors their performance, or curates a network of providers, it exercises the same selection and retention control that anchored liability for freight brokers. Courts examining these claims will likely ask whether the broker held itself out as vetting providers and whether the client relied on that vetting when delegating legal work.
Also worth reading: AI Broker Liability Insurance: Who Covers the Brokers Selling AI Risk? · How Can AI Broker Audit Trail Requirements Ensure Compliance and Transparency in Financial Services? · Can AI Agent Identity Verification Protect Legal Brokers from Runtime Liability?
Liability, however, will not attach automatically. Plaintiffs must still establish the familiar elements: a duty arising from the broker's role, breach of the standard of care in choosing or keeping a provider, causation, and damages. The foreseeability of harm from a poorly selected lawyer or faulty AI tool, the degree of control the broker wielded over the provider, and what the broker disclosed about its screening process will shape outcomes. Following Montgomery, brokers across industries should expect intensified scrutiny of their vetting practices, and carriers, lawyers, and software vendors face renewed pressure to document how intermediaries choose the providers who ultimately serve the public.
Fifth Circuit Opens Door For Plaintiffs
The Supreme Court’s Montgomery decision held that state-law negligent selection claims against freight brokers are not preempted by the Federal Aviation Administration Authorization Act, and the Fifth Circuit has now revived such claims on remand. That reasoning turns on whether a broker owes a duty of reasonable care when selecting the motor carrier it hires. An AI legal services broker, which matches clients with attorneys or law firms rather than trucks with drivers, occupies an analogous intermediary position. If it exercises discretion in recommending or assigning providers, plaintiffs may argue it assumed a duty to vet competence and fitness.
The key question is whether the broker’s role is merely passive or involves meaningful selection. A platform that algorithmically ranks, filters, or endorses legal providers could be characterized as making a selection decision, exposing it to negligent selection liability. Conversely, a pure directory with no curation may avoid such claims. After Montgomery, state tort law governs, so outcomes will vary by jurisdiction. AI brokers should document vetting criteria and avoid implying endorsement to limit exposure.
Carrier Vetting Standards Face New Scrutiny
After Montgomery, the Supreme Court made clear that state-law negligent selection claims against freight brokers are not automatically preempted. By analogy, an AI legal services broker that matches clients with lawyers or legal providers could face similar liability if it assumes a vetting role. Courts will ask whether the platform merely publishes information or actually selects, recommends, and holds itself out as screening qualified providers. If it does, it may owe a duty of reasonable care.
An AI broker is not immune simply because software makes the match. If its algorithm fails to check licensure, discipline, malpractice history, or competence, and a client is harmed, a negligent selection claim may survive. Montgomery and the Fifth Circuit’s revival of such claims suggest fact-specific inquiries, not categorical immunity. The safer approach is meaningful vetting, ongoing monitoring, clear disclaimers, and human oversight, especially where the AI promises trusted legal referrals.
State Law Claims Survive Federal Preemption
Montgomery v. Caribe Transport held that the FAAAA does not preempt state-law negligent selection claims against freight brokers. By analogy, an AI legal services broker could face similar liability if it selects or recommends AI tools, nonlawyer providers, or attorneys for clients and fails to exercise reasonable care. The absence of FAAAA preemption does not itself create a duty, but it leaves room for state tort law to impose one where the broker undertakes to match clients with competent legal services.
Liability would likely turn on foreseeability, reliance, causation, and the broker’s role. A platform that merely publishes information may avoid a duty; one that vets, ranks, or guarantees providers may not. Legal-specific duties, unauthorized-practice rules, malpractice exposure, and disclosures will also shape the analysis. After Montgomery, the key lesson is that labeling a service a broker may not shield it from state negligent-selection claims.
AI Broker Risk Controls Need Immediate Review
After Montgomery, the Supreme Court and Fifth Circuit have made clear that federal preemption does not automatically shield brokers from state-law negligent selection claims. An AI legal services broker could face similar liability if it markets itself as matching clients with qualified lawyers or legal AI tools and then fails to exercise reasonable care in vetting, screening, or monitoring those providers. The key is whether the broker assumes a selection duty, not merely whether it uses AI. If a client relies on the platform’s promises of competence and suffers harm from an unqualified or unsafe provider, a court may allow a negligent selection claim to proceed.
However, AI legal brokers are not freight brokers. Montgomery addresses transportation preemption, so its direct effect is limited. Liability will turn on state law, the platform’s terms, its actual role, and whether it knew or should have known of risks. Disclaimers help but do not erase an assumed duty. Brokers should document vetting, monitor providers, and avoid overstating AI accuracy or lawyer qualifications. Risk controls need immediate review.
Broker Duty Versus Carrier Risk
| Issue | Montgomery lesson | AI legal services broker risk |
|---|---|---|
| Preemption defense | FAAAA does not categorically preempt state negligent selection claims | Broker cannot rely solely on federal preemption to dismiss AI provider vetting claims |
| Duty to vet | A broker may owe reasonable care when selecting or arranging services | Must assess AI provider accuracy, security, licensing, insurance, and competence |
| Knowledge and red flags | Liability turns on what the broker knew or should have known | Ignoring complaints, audits, outages, hallucinations, or data breaches increases exposure |
| Contracts and disclaimers | Waivers and terms help but do not immunize tortious conduct | Clear disclosures, insurance, and monitoring reduce—but do not erase—negligent selection risk |