When the Exception Swallows the Rule:

Is Broker Preemption a Casualty of the States’ Safety Authority?

1. Introduction

Courts throughout the country struggle with the question of whether preemption under the Federal Aviation Authorization Act (“FAAAA”), codified in 49 USC § 14501, preempts casualty claims against freight brokers and if so, whether the safety exemption applies to allow state negligence claims to proceed. The Court in Bertram v. Progressive Se. Ins. Co., No. 2:19-CV-01478, 2021 WL 2955740, at *2 (W.D. La. July 14, 2021) recently set forth the three distinct positions taken by courts:

The first group of courts found no FAAAA preemption of personal injury claims against brokers based on the conclusion that negligent hiring claims are not sufficiently “related to” the services of a broker. See, e.g., Scott v. Milosevic, 372 F. Supp. 3d 758, 769 (N.D. Iowa 2019); Mann v. C.H. Robinson Worldwide, Inc., 2017 WL 3191516, at *7 (W.D. Va. July 27, 2017). The second group of courts rejected FAAAA preemption of common law negligence claims based on the safety regulatory exception. See, e.g., Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020); Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 512 (N.D. Tex. 2020); Popal v. Reliable Cargo Delivery, Inc., 2021 WL 1100097 (W.D. Tex. Mar. 10, 2021); Grant v. Lowe's Home Ctr., 2021 WL 288372, at *3 (D.S.C. Jan. 28, 2021). Finally, the third group of courts have found that negligence claims against freight brokers are preempted under the FAAAA and do not fall within the safety exception. See, e.g., Gillum v. High Standard, LLC et al., 2020 WL 444371 (W.D. Tex. Jan. 27, 2020); Loyd v. Salazar, 2019 WL 4577108, at *4 (W.D. Okla. Sept. 20, 2019); Creagan v. Wal-Mart Trans., LLC, 354 F. Supp. 3d 808, 812 (N.D. Ohio 2018).

Given the recent ruling by the United States Supreme Court rejecting a writ petition in Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020) (“Miller”), the Ninth Circuit’s finding that the safety exception nullifies preemption in casualty cases remains, at least of now, the highest court ruling on this issue.

1. The FAAAA Provides Authority for Preemption

The source for federal authority over intrastate transportation is 49 U.S.C. § 14501. The “general rule” is:

"Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property."[1]

This Section draws a rough line between a government's exercise of regulatory authority and the government's own contract-based participation in a market, excluding from its scope everyday contractual arrangements.[2]

            The test for whether FAAAA preemption applies is the “related to” test, which comes from the phrase “related to” in 49 U.S.C. § 14501(c)(1). This test has been applied by the Supreme Court of the United States, which determined that the phrase “related to” in the FAAAA “embraces state laws ‘having a connection with or reference to’ ... ‘rates, routes, or services,’ whether directly or indirectly.”[3] Further, the Supreme Court has determined:

"(1) that “[s]tate enforcement actions having a connection with, or reference to,” carrier “ ‘rates, routes, or services' are pre-empted;” (2) that such pre-emption may occur even if a state law's effect on rates, routes, or services “is only indirect;” (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation; and (4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress' deregulatory and pre-emption-related objectives."[4]

The Supreme Court has also held that state laws affecting rates, routes, or services “only in a tenuous, remote, or peripheral…manner, with no significant impact on Congress’s deregulatory authority” are not preempted by the FAAAA.[5]

2. The Safety Exception Allows Some State Regulation

The safety exception as outlined in the FAAAA provides in relevant part that the general rule “shall not restrict the safety and regulatory authority of a State with respect to motor vehicles.”[6] The Supreme Court has not offered an abundance of guidance on the safety exception thus far. In City of Columbus v. Ours Garage and Wrecker Service, Inc., the Supreme Court held that “Section 14501(c)(2)(A) seeks to save from preemption state power ‘in a field which the States have traditionally occupied.’”[7] The Supreme Court also held that “Congress' clear purpose in § 14501(c)(2)(A) is to ensure that its preemption of States' economic authority over motor carriers of property, § 14501(c)(1), ‘not restrict’ the preexisting and traditional state police power over safety.”[8] The scope and application of the safety exception is evolving as various court weigh in.

3. Miller v. C.H. Robinson Worldwide, Inc. Elevates the Safety Exception

A. The Majority Decision

The only circuit court to tackle the issues of whether claims of broker negligence in casualty cases are preempted by the FAAAA, and if so, whether the safety exception applies, is the Ninth Circuit in the 2020 case Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020) (“Miller”). In Miller, the Ninth Circuit wrestled with the “related to” test for FAAAA preemption finding that preemption did apply, but then found that the safety exception nullifies the otherwise applicable preemption.

Plaintiff Allen Miller (Miller) sustained serious injuries after being struck by a tractor trailer.[9] In June 2017, Miller sued broker C.H. Robinson Worldwide, Inc. (“C.H. Robinson”), the motor carrier, the driver, and the shipper. The suit included a cause of action against C.H. Robinson for  breach of “duty to select a competent contractor…by retaining incompetent, unfit, or inexperienced contractors or sub-haulers to arrange and/or take the[e] load.”[10] Miller alleged that C.H. Robinson “knew or should have known” of the motor carrier’s “incompetence” because of the motor carrier’s “history of safety violations,” “service violations and false log books,” and “out of service violations…twice that of the national average.”[11] In July 2018, C.H. Robinson moved for judgment on the pleadings, arguing that the FAAAA preempted Miller’s negligence claim.

The U.S. District Court, District of Nevada, was the first court to consider the preemption decision in this case. The District Court held that the FAAAA preempted Miller’s negligence claim, holding that the claim “sets out to reshape the level of service a broker must provide in selecting a motor carrier to transport property.”[12] The District Court reasoned that “to avoid negligence liability, a broker would consistently need to inspect each motor carrier's background,” and “such additional inspection would result in state law being used to, at least indirectly, regulate the provision of broker services by creating a standard of best practices.”[13]

The District Court also held that the negligence claim did not fall within the safety exception under 49 U.S.C. § 14501(c)(2)(A).[14] The District Court reasoned that there is no private right of action under the safety exception because that would “essentially do the state’s work and enforce the state’s police power.”[15] Further, the safety exception is “silent regarding broker services,” which the District Court found persuasive.[16] Miller appealed the District Court’s judgment to the Ninth Circuit.[17]

The Ninth Circuit reviewed de novo whether preemption under the FAAAA existed, and if so, whether the safety exception applied.[18] The Ninth Circuit operated under “the presumption that Congress does not intend to supplant state law” and the presumption that “Congress has not preempted the ‘historic police powers of the States…unless that was the clear and manifest purpose of Congress.”[19] Using the Airline Deregulation Act of 1978, the predecessor of the FAAAA, as a guide, the Court determined that the focus of the FAAAA was the economic deregulation of the trucking industry.[20]

The Ninth Circuit next considered whether or not Miller’s negligence claim was “related to” the services provided by brokers, using the “related to” test laid out in Rowe v. N.H. Motor Transp. Ass'n.[21] The “selection of motor carriers is one of the core services of brokers,”[22] with a broker being defined as “a person, other than a motor carrier ..., that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.”[23] The Ninth Circuit determined that Miller’s negligence claim was not only “related to,” but “directly ‘connect[ed] with’ broker services” because it applied to the core broker service of selecting motor carriers.[24] The Court resisted narrowly interpreting FAAAA preemption by limiting it to only those laws that would “bind” a motor carrier or broker to “specific prices, routes, or services,”[25] instead recognizing that broader interpretation is necessary because “few common-law claims, if any, would be preempted if the FAAAA only preempts state laws that bind brokers to specific prices, routes, or services.”[26] The Ninth Circuit determined that Miller’s negligence claim was indeed preempted by the FAAAA.[27]

The Ninth Circuit then wrestled with whether the negligence claim falls within the safety exception. The Court began by determining that “the safety regulatory authority of a State encompasses common-law tort claims.”[28] The Court then determined that “Congress's ‘clear purpose’ in enacting the safety exception, then, was ‘to ensure that its preemption of States’ economic authority over [that industry] ... ‘not restrict’ the States’ existing power over “safety.’”[29] The Court additionally relied on the Supreme Court’s decision in American Trucking Associations, Inc. v. City of Los Angeles, 569 U.S. 641, 133 S.Ct. 2096 (2013), where the Supreme Court held that the FAAAA’s preemption clause “’targets the State acting as a State, not as any market actor—or otherwise said, the State acting in a regulatory rather than proprietary mode.’”[30] The Ninth Circuit reasoned that this same logic applied to the safety exception, saying “if the preemption provision targets ‘a government's exercise of regulatory authority,’…and that provision encompasses common-law claims,…then surely ‘the safety regulatory authority of a State’ also includes at least some common-law claims.”[31]

The Ninth Circuit also considered C.H. Robinson’s argument that the safety exception “is limited to positive enactments of law, tort claims that are ‘related to’ broker prices, routes, or services might be saved from preemption in states, like California, that have codified their common law, but could not possibly be saved from preemption in states that have not done the same,” concluding that “[i]t seems unlikely that Congress would have made the availability of this exception dependent on codification, particularly in light of the FAAAA's goal of uniformity.”[32] The Court further relied on Supreme Court guidance that states “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’”[33]

The Ninth Circuit determined that “negligence claims against brokers that stem from motor vehicle accidents are ‘with respect to motor vehicles.’”[34] The Court relied on Supreme Court precedent that states “[c]onsequently, the FAAAA's safety exception exempts from preemption safety regulations that ‘hav[e] a connection with” motor vehicles,’ whether directly or indirectly.’”[35] The Ninth Circuit’s final holding was “negligence claims against brokers, to the extent that they arise out of motor vehicle accidents, have the requisite “connection with” motor vehicles. Therefore, the safety exception applies to Miller's claim against C.H. Robinson.”[36]

C.H. Robinson then file a writ petition to the United States Supreme Court. During the 2022 US Supreme Court session, Miller was considered for certiorari. The question presented was “whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the ‘safety regulatory authority of a State with respect to motor vehicles’ within the meaning of the FAAAA’s safety exception.”[37] The Supreme Court denied certiorari without explanation on June 27, 2022.[38]

B. The Concurring Decision

Interestingly, one Ninth Circuit judge concurred in part in the Miller decision but dissented with the Ninth Circuit’s analysis of the safety exception. Judge Fernandez makes a distinction between brokers and motor carriers, using that distinction to find that Miller’s negligence claim does not “amount to one under ‘the safety regulatory authority of a State with respect to motor vehicles.’”  Judge Fernandez reasoned that:

C.H. Robinson is a broker, which is “a principal or agent [that] sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” Id. § 13102(2). A motor carrier, in turn, is “a person providing motor vehicle transportation for compensation.” Id. at (14). And, a broker cannot be a motor carrier. Id. at (2). Those definitions make clear that as a broker, C.H. Robinson and the services it provides have no direct connection to motor vehicles or their drivers. Any connection is merely indirect—for example, via an intermediary motor carrier.

While the majority applied the rationale in California Tow Truck Ass'n v. City & Cnty. of San Francisco, 807 F.3d 1008, 1021 (9th Cir. 2015), where the Ninth Circuit held that the safety exception applied to tow truck regulations that would prohibit dangerous conduct by tow truck drivers and regulated the qualifications for potential tow truck drivers’ criminal history, Judge Fernandez found that broker services are merely tangentially related to motor vehicles.  Judge Fernandez envisioned the safety exception being applied too broadly in the aftermath of the Miller decision, stating that the decision will “inevitably conscript brokers into a parallel regulatory regime that required them to evaluate and screen motor carriers (which are already subject to federal registration requirements as well as state and local regulations) according to the varied common law mandates of myriad states. It could even require brokers to effectively eliminate some motor carriers from the transportation market altogether.”

4. Analysis by Other Courts

While no other circuit court has yet decided on an FAAAA preemption challenge brought by a broker in a casualty case, or whether the safety exception applies, a number of district courts have weighed in on the issues. Miller itself names four district courts that had previously made determinations on the issues, with split findings.[39]

Post-Miller, the following circuit courts could see appeals due to district courts within their jurisdictions ruling on these issues: the Fourth Circuit (D.Md.); the Fifth Circuit (W.D.Tex., W.D.La.); the Seventh Circuit (N.D.Ind.); and the Tenth Circuit (D.N.M., D.Wyo.). The relevant cases in each district, and the analysis used by each court, is discussed in more detail below.

A. The Fourth Circuit

The Fourth Circuit could see an appeal in the August 2022 decision rendered by the United States District Court, District of Maryland, in the case Ortiz v. Ben Strong Trucking, Inc., No. CV CCB-18-3230, 2022 WL 3717217 (D. Md. Aug. 29, 2022) (“Ortiz”). The accident giving rise to the action in Ortiz involved the death of a child, and plaintiffs’ brought multiple claims against the broker and motor carrier, including negligence and negligent hiring.[40]

The Ortiz court explained that while there is no binding Fourth Circuit precedent on whether common-law negligent selection claims are preempted under the FAAAA, other district courts in the Fourth Circuit have found that these claims are not preempted.[41] “A negligent hiring claim as an avenue for imposing liability for an accident does not have anything more than a tenuous, remote, or peripheral connection to the price, route, or service of a broker .... Instead, ... a personal injury suit for negligent hiring is not an attempt to regulate the services of a freight broker.”[42] Because the Ortiz court held that the negligent selection claim was not preempted by the FAAAA, it found no reason to evaluate the safety exception.[43]

Ortiz has not yet been fully adjudicated as the cross-motions for summary judgment and various motions in limine were all granted in part and denied in part.[44] Cases within the Fourth Circuit seem to generally find that negligent hiring claims are not preempted by the FAAAA, and if the Fourth Circuit ever hears Ortiz, there is the potential for a ruling that creates a circuit split with the Ninth Circuit on that question.

B. The Fifth Circuit

Two district courts within the Fifth Circuit have recently evaluated the questions posed by Miller. In Popal v. Reliable Cargo Delivery, Inc., No. P:20-CV-00039-DC, 2021 WL 1100097 (W.D. Tex. Mar. 10, 2021), the primary issue was whether the district court had jurisdiction. The court decided that the district court did not have jurisdiction over the case because the common law negligence and negligent hiring claims are not preempted by the FAAAA because the safety exception applies. The district court held that it “agrees with the Ninth Circuit's discussion of the safety regulation exception in Miller and similar discussion by district courts holding the safety regulation exception must be interpreted broadly and that the state's safety regulatory authority encompasses common law claims.”[45] This case was remanded back to state court.[46]

            In Bertram v. Progressive Southeastern Insurance Co., No. 2:19-CV-01478, 2021 WL 2955740 (W.D. La. July 14, 2021), a district court in the Western District of Louisiana wrestled with FAAAA preemption of a negligent selection claim against a broker after a fatal accident.[47] The court was “persuaded by the definition of a freight broker, who arranges for transportation of goods.” With that definition in mind, the Court found “that selection of motor carriers is one of the core services of brokers, and because a negligence claim seeks to interfere at the point at which [the broker] ‘arranges for’ transportation by motor carrier, it is directly ‘connected with’ broker services.”[48] The court agreed with Miller and its reasoning regarding the safety exception as well.[49] As the ruling in Betram was solely on a motion to dismiss, this case has not yet been fully adjudicated.

            Based on the reasoning used in these two still pending district court cases within the Fifth Circuit’s jurisdiction, it appears that the Fifth Circuit would be in-step with the Ninth Circuit on any future rulings regarding FAAAA preemption of negligent hiring claims against brokers.

However, in Gillum v. High Standard, LLC, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020), the district court upheld preemption. There, Scott Gillum was hit by a tractor-trailer and sued the driver, the motor carriers involved in hiring and training the driver, and the freight broker that selected the motor carriers. Plaintiff accused the broker of negligently hiring the motor carriers. The broker moved to dismiss arguing that federal law completely preempts state common law negligence claims against a freight broker. The district court recognized that there was a split in the courts that had reviewed this issue. After considering the plain language of the federal statutes, the limited statutory exceptions, its reading of the Congressional intent, the court held that “the FAAAA completely preempts Plaintiff's negligence claims . . . where that negligence ‘relates to’ the services the broker provides.” 2020 WL 444371 at *7.

C. The Seventh Circuit

In Wardingley v. Ecovyst Catalyst Technologies, LLC, No. 2:22-CV-115-PPS-JEM, 2022 WL 16714139, (N.D. Ind. Nov. 4, 2022), the Northern District of Indiana dealt with a negligent selection claim against a broker as a result of a motor vehicle accident between plaintiff and the motor carrier.[50] The broker moved to have the negligent selection claim against it dismissed, arguing that it is preempted by the FAAAA.[51] The court was skeptical “that Congress, in its mission to unencumber the interstate trucking industry from a patchwork of state tariffs, price controls, and similar economic regulations, also aimed to completely unyoke trucking companies and freight brokers from commonsense standards of care enforced through private tort actions,” and found that the FAAAA does not preempt personal injury negligence claims against brokers.[52] While the end result is the same as Miller – the negligence claim was permitted to proceed – in this part, the Wardingley decision strays from the reasoning underlying Miller,.

Regarding the safety exception, the Wardingley court held that even if the negligence claims against the broker were preempted by the FAAAA, they would be saved from preemption by the safety exception.[53] The court agreed with Miller’s reasoning in this part and was especially persuaded by the legislative history.[54] In denying the motion to dismiss, the court ultimately held that the claims were not preempted, and if they somehow were, they fell under the safety exception.[55] This leads to a distinction without much of a difference from Miller, as the outcome would be the same.

D. The Tenth Circuit

The Tenth Circuit’s district courts have dealt with a recent case concerning FAAAA preemption for negligence claims against brokers and the safety exception. In Dixon v. Stone Truck Line, Inc., No. 219CV000945JCHGJF, 2021 WL 5493076 (D.N.M. Nov. 23, 2021), the court agreed with the Ninth Circuit regarding negligent hiring claims against brokers being preempted by the FAAAA.[56] The district court also “agree[d] with the Ninth Circuit's reasoning that the legislative history and public policy of the FAAAA supports a broader interpretation of the safety exclusion to save certain common law torts from preemption.”[57] This case has not been fully adjudicated and depending on the outcome, could end up before the Tenth Circuit.

5. Conclusion

Time will tell whether the United States Supreme Court will take up this issue, and what its decision will be. In the meantime, defendant brokers are left with a patchwork of conflicting decisions throughout the country, leaving them without the ability to accurately assess the risk posed by negligent selection claims.

[1] 49 U.S.C. § 14501(c)(1).

[2] American Trucking Associations, Inc. v. City of Los Angeles, Cal., (U.S. 2013) 133 S.Ct. 2096, 569 U.S. 641, 186 L.Ed.2d 177.

[3] Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013) (“Dan’s City Used Cars”) (quoting Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008)).

[4] Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 370-71, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008))[internal citations omitted].

[5] Id. at 371.

[6] 49 U.S.C. § 14501(c)(2)(A).

[7] City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 438, 122 S. Ct. 2226, 2235, 153 L. Ed. 2d 430 (2002) (“Ours Garage”) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).

[8] Ours Garage, supra, 536 U.S. at 439.

[9] Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1020 (9th Cir. 2020) (“Miller”).

[10] Id. at 1020-1021.

[11] Id. at 1021.

[12] Id.

[13] Id.

[14] Miller, supra, 976 F.3d at 1021.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. [internal citations omitted].

[20] Miller, supra, 976 F.3d at 1022.

[21] Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 370-71, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008))[internal citations omitted].

[22] Miller, supra, 976 F.3d at 1024.

[23] Id. (quoting 49 U.S.C. § 13102(2)).

[24] Miller, supra, 976 F.3d at 1024.

[25] Id.

[26] Id. at 1025.

[27] Id.

[28] Id. at 1026.

[29] Miller, supra, 976 F.3d at 1026 (quoting Ours Garage, 536 U.S. at 439 (quoting 49 U.S.C. § 14501(c)(2)(A)).

[30] Miller, supra, 976 F.3d at 1027 (quoting American Trucking Associations, Inc. v. City of Los Angeles, 569 U.S. 641, 650, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013).

[31] Miller, supra, 976 F.3d at 1027 [internal citations omitted].

[32] Miller, supra, 976 F.3d at 1027.

[33] Id. at 1027-28, (quoting CTS Corp. v. Waldburger, 573 U.S. 1, 19, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) (quoting *1028 Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008)).

[34] Miller, supra, 976 F.3d at 1030.

[35] Id. (quoting California Tow Truck Ass'n v. City & Cnty. of San Francisco, 807 F.3d 1008, 1021 (9th Cir. 2015) (quoting Dan's City Used Cars, supra, 569 U.S. at 260, 133 S.Ct. 1769).

[36] Miller, supra, 976 F.3d at 1031.

[37] C.H. Robinson Worldwide, Inc., Petitioner, v. Allen Miller., 2021 WL 1391269, *I (U.S.)

[38] C.H. Robinson Worldwide, Inc. v. Miller, 213 L. Ed. 2d 1090, 142 S. Ct. 2866 (2022).

[39] Id.

[40] Ortiz v. Ben Strong Trucking, Inc., No. CV CCB-18-3230, 2022 WL 3717217, *1 (D. Md. Aug. 29, 2022).

[41] Id. at *10 (see Mann v. C. H. Robinson Worldwide, Inc., No. 7:16-cv-102, 2017 WL 3191516, at *5–*8 (W.D. Va. July 27, 2017) (“Mann”); Gilley v. C.H. Robinson Worldwide, Inc., No. 1:18-536, 2019 WL 1410902, at *3–*5 (S.D.W. Va. Mar. 28, 2019); Vitek v. Freightquote.com, Inc., No. JKB-20-274, 2020 WL 1986427, at *2–*4 (D. Md. Apr. 27, 2020).

[42] Id. (quoting Mann, supra, 2017 WL 3191516, at *7).

[43] Id. at *11.

[44] Id. at *18.

[45] Popal v. Reliable Cargo Delivery, Inc., No. P:20-CV-00039-DC, 2021 WL 1100097, at *4 (W.D. Tex. Mar. 10, 2021) (see Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 515 (N.D. Tex. 2020); see also Grant v. Lowe's Home Ctr., No. 5:20-02278-MGL, 2021 WL 288372, at *3–4 (D.S.C. Jan. 28, 2021) (adopting the Ninth Circuit's reasoning in Miller and noting “common law liability has formed the bedrock of state regulation, and common law claims have been described as a ‘critical component of the States' traditional ability to protect the health and safety other their citizens’ ”) (quoting Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006)); Mendoza v. BSB Transp., Inc., No. 4:20 CV 270 CDP, 2020 WL 6270743, at *3 (E.D. Mo. Oct. 26, 2020) (agreeing that “common law negligent brokering claims exist as ‘a valid exercise of the state's police power to regulate safety’”).

[46] Id.

[47] Bertram v. Progressive Southeastern Insurance Co., No. 2:19-CV-01478, 2021 WL 2955740, at *1 (W.D. La. July 14, 2021).

[48] Id. at *5.

[49] Id. at *6.

[50] Wardingley v. Ecovyst Catalyst Technologies, LLC, No. 2:22-CV-115-PPS-JEM, 2022 WL 16714139, at *1 (N.D. Ind. Nov. 4, 2022).

[51] Id.

[52] Id. at *5-*6.

[53] Id. at *6.

[54] Id. at *7.

[55] Id.

[56] Dixon v. Stone Truck Line, Inc., No. 219CV000945JCHGJF, 2021 WL 5493076, at *10 (D.N.M. Nov. 23, 2021).

[57] Id. at *13.