Allen Miller v. C.H. Robinson Worldwide, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALLEN MILLER, No. 19-15981
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-00408-
MMD-WGC
C.H. ROBINSON WORLDWIDE, INC.;
RONEL R. SINGH; RHEAS TRANS,
INC.; KUWAR SINGH, DBA RT OPINION
Service,
Defendants-Appellees,

and

COSTCO WHOLESALE CORPORATION;
LOTUS FOODS, INC.; PRIDE
INDUSTRIES,
Defendants.

Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted July 8, 2020
Seattle, Washington

Filed September 28, 2020
2 MILLER V. C.H. ROBINSON WORLDWIDE

Before: Ferdinand F. Fernandez and Jacqueline H.
Nguyen, Circuit Judges, and Susan R. Bolton,*
District Judge.

Opinion by Judge Nguyen;
Partial Concurrence and Partial Dissent by
Judge Fernandez

SUMMARY **

Federal Aviation Administration Authorization Act
of 1994

The panel reversed the district court’s dismissal, based
on the Federal Aviation Administration Authorization Act of
1994 (“FAAAA”)’s preemption, of plaintiff’s state law
claim alleging that C.H. Robinson Worldwide, Inc.
negligently selected an unsafe motor carrier resulting in
plaintiff’s serious injuries in a motor vehicle accident.

The FAAAA preempts state laws that are “related to a
price, route, or service of any . . . broker,” unless one of the
FAAAA’s exceptions applies. The district court found
plaintiff’s claim preempted under the FAAAA because it
was “related to” C.H. Robinson’s services and did not fall
within the exception for “the safety regulatory authority of a
State with respect to motor vehicles.”

*
The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MILLER V. C.H. ROBINSON WORLDWIDE 3

The panel agreed with the district court that plaintiff’s
claim was “related to” C.H. Robinson’s broker services, but
held that the district court erred in holding that the safety
exception did not apply. The panel held that in enacting the
exception, Congress intended to preserve the States’ broad
power over safety, a power that included the ability to
regulate conduct not only through legislative and
administrative enactments, but also through common law
damages. The panel further held that plaintiff’s claim also
had the requisite “connection with” motor vehicles because
it arose out of a motor vehicle accident.

The panel concluded that 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 applied to
plaintiff’s claim against C.H. Robinson.

Judge Fernandez concurred in parts I, II, and III A, B,
C.1 of the majority opinion, and dissented from part C.2.
Judge Fernandez would hold that plaintiff’s claim did not
come within the safety exception of 49 U.S.C.
§ 1450(c)(2)(A) because as a broker, C.H. Robinson and the
services it provided had no direct connection to motor
vehicles or their drivers; and he would affirm the district
court’s decision.

COUNSEL

Jeffery I. Ehrlich (argued), The Ehrlich Law Firm,
Claremont, California; Matthew L. Sharp, Matthew L. Sharp
Ltd., Reno, Nevada; Michael Jay Leizerman and Rena Mara
Leizerman, Leizerman & Associates, Toledo, Ohio; for
Plaintiff-Appellant.
4 MILLER V. C.H. ROBINSON WORLDWIDE

Daniel F. Polsenberg (argued) and Abraham G. Smith,
Lewis Roca Rothgerber Christie LLP, Las Vegas, Nevada;
Michael E. Sullivan, Michael A. Burke, and Therese M.
Shanks, Robison Sharp Sullivan & Brust, Reno, Nevada; for
Defendants-Appellees.

OPINION

NGUYEN, Circuit Judge:

Allen Miller (“Miller”) suffered serious injuries when he
was struck by a semi-tractor trailer while driving near Elko,
Nevada. Miller sued C.H. Robinson Worldwide, Inc. (“C.H.
Robinson”), the freight broker that arranged for the trailer to
transport goods for Costco Wholesale, Inc. (“Costco”).
Miller alleges that C.H. Robinson negligently selected an
unsafe motor carrier.

The Federal Aviation Administration Authorization Act
of 1994 (the “FAAAA”) preempts state laws that are “related
to a price, route, or service of any . . . broker,” unless one of
the FAAAA’s exceptions applies. The district court found
Miller’s claim preempted under the FAAAA, reasoning that
it is “related to” C.H. Robinson’s services and does not fall
within the exception for “the safety regulatory authority of a
State with respect to motor vehicles.”

We agree with the district court that Miller’s claim is
“related to” C.H. Robinson’s services. Brokers arrange for
transportation by motor carrier, and Miller alleges that C.H.
Robinson was negligent in performing that service. But we
hold that the district court erred in holding that the safety
exception does not apply. In enacting that exception,
Congress intended to preserve the States’ broad power over
safety, a power that includes the ability to regulate conduct
 MILLER V. C.H. ROBINSON WORLDWIDE 5

not only through legislative and administrative enactments,
but also though common-law damages awards. Miller’s
claim also has the requisite “connection with” motor
vehicles because it arises out of a motor vehicle accident.
We therefore reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

C.H. Robinson is a company that is “regularly engaged
in the business of shipping, brokering, and logistics.” C.H.
Robinson selected Kuwar Singh d/b/a RT Service (“RT
Service”) and/or Rheas Trans, Inc. (“Rheas Trans”) to
transport Costco’s shipment. RT Service and Rheas Trans
are federally licensed motor carriers. The driver of the semi-
tractor trailer, Ronel Singh, was employed by RT Service
and/or Rheas Trans at the time of the collision.

Singh lost control of the trailer while driving in icy
conditions on I-80 near Elko, Nevada. The trailer crossed
over the median into oncoming traffic and collided with
Miller’s vehicle, and Miller “became lodged and pinned”
under the trailer. Miller suffered extensive injuries in the
collision, and he is now quadriplegic.

In June 2017, Miller sued, among others, C.H. Robinson,
RT Service, Rheas Trans, Singh, and Costco. 1 Thereafter,
Miller filed an amended complaint. Relevant here, the
amended complaint alleges that C.H. Robinson breached its
“duty to select a competent contractor to transport” Costco’s
load “by retaining incompetent, unfit or inexperienced
contractors or sub-haulers to arrange and/or take th[e] load.”

1
The parties stipulated to Costco’s dismissal in September 2017.
6 MILLER V. C.H. ROBINSON WORLDWIDE

It alleges that C.H. Robinson “knew or should have known”
of RT Service’s and Rheas Trans’s “incompetence” because

[T]here were red flags . . . including that [RT
Service] and/or Rheas Trans have a history of
safety violations; over 40% of their trucks
have been deemed illegal to be on the road
when stopped for random inspections; they
have been cited numerous times for hours of
service violations and false log books; and
their percentage of out of service violations is
twice that of the national average.

In July 2018, C.H. Robinson moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c),
arguing that the FAAAA preempts Miller’s negligence
claim. The district court granted the motion, concluding that
the claim “sets out to reshape the level of service a broker
must provide in selecting a motor carrier to transport
property.” For instance, “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.” The district court went on to
hold that Miller’s claim does not fall within the exception for
“the safety regulatory authority of a State with respect to
motor vehicles.” See 49 U.S.C. § 14501(c)(2)(A). The court
reasoned that this exception does not “permit[] a private
right of action—allowing for Miller to essentially do the
state’s work and enforce the state’s police power.” The court
also found significant the fact the exception “is silent
regarding broker services.”
 MILLER V. C.H. ROBINSON WORLDWIDE 7

Thereafter, Miller settled with the remaining defendants.
The court entered judgment, and this appeal timely followed.

II. JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.
§ 1332, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review questions of preemption de novo. Cal.
Trucking Ass’n v. Su, 903 F.3d 953, 958 (9th Cir. 2018). We
also review de novo an order granting a Rule 12(c) motion
for judgment on the pleadings. Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009).

III. DISCUSSION

A. The “Related to” Test for FAAAA Preemption

“In considering the preemptive scope of a statute,
congressional intent ‘is the ultimate touchstone.’” Dilts v.
Penske Logistics, LLC, 769 F.3d 637, 642 (9th Cir. 2014)
(quoting Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.
Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)). We primarily
discern Congress’s intent “from the language of the pre-
emption statute and the statutory framework surrounding it,”
but we may also consult “the structure and purpose of the
statute as a whole.” Id. (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 486 (1996)). The scope of a preemption
clause is also tempered by “the presumption that Congress
does not intend to supplant state law,” particularly in areas
of traditional state regulation. Id. at 642–43. We therefore
presume that Congress has not preempted the “historic
police powers of the States . . . unless that was the clear and
manifest purpose of Congress.” Cal. Tow Truck Ass’n v.
City & County of San Francisco, 807 F.3d 1008, 1019 (9th
Cir. 2015) (quoting City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 438 (2002)).
8 MILLER V. C.H. ROBINSON WORLDWIDE

The FAAAA provides, in relevant part:

(1) General rule.–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 . . . ,
broker, or freight forwarder with respect to
the transportation of property

(2) Matters not covered.–Paragraph (1)–(A)
shall not restrict the safety regulatory
authority of a State with respect to motor
vehicles . . . .

49 U.S.C. § 14501(c).

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.” Dan’s
City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013)
(quoting Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364,
370 (2008)). To determine whether a state law has a
“connection with” rates, routes, or services, we “examine the
actual or likely effect” of the law. 2 Am. Trucking Ass’ns,

2
Preemption resulting from “reference to” prices, routes, or services
occurs when “a State’s law acts immediately and exclusively upon”
prices, routes, or services, or “where the existence of [a price, route or
service] is essential to the law’s operation.” Air Transp. Ass’n of Am. v.
City & County of San Francisco, 266 F.3d 1064, 1071 (9th Cir. 2001)
(alteration in original) (quoting Cal. Div. of Labor Standards Enf’t v.
Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997)). We do not
 MILLER V. C.H. ROBINSON WORLDWIDE 9

Inc. v. City of Los Angeles, 660 F.3d 384, 396 (9th Cir.
2011), rev’d in part on other grounds, 569 U.S. 641 (2013).
If, for example, the law “mandates that motor carriers [or
brokers] provide a particular service to customers, or forbids
them to serve certain potential customers, the effect is clear,
and the provision is preempted . . . .” Id. By contrast, state
laws that affect prices, routes, or services “in only a
‘tenuous, remote, or peripheral . . . manner’ with no
significant impact on Congress’s deregulatory objectives”
are not preempted. Su, 903 F.3d at 960 (quoting Rowe,
552 U.S. at 371).

In passing the FAAAA, which is modeled on the Airline
Deregulation Act of 1978 (the “ADA”), 3 Congress sought to
achieve two broad objectives. Id. First, it sought to
eliminate the competitive advantage air carriers enjoyed
relative to motor carriers. Courts had interpreted the ADA
as preempting state regulation of air carriers, but not motor
carriers. Id. Second, it sought to “address the inefficiencies,
lack of innovation, and lack of competition caused by non-
uniform regulations of motor carriers.” Id. In particular,
Congress was “concerned about States enacting ‘barriers to
entry, tariffs, price regulations, and laws governing the types
of commodities that a carrier could transport.’” 4 Id. at 960–

address whether Miller’s negligence claim is preempted under this
separate prong.

3
The ADA provides, in relevant part, that “a State . . . 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 an air carrier that may
provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).

4
For an in-depth discussion of the FAAAA’s legislative history, see
Californians For Safe & Competitive Dump Truck Transp. v. Mendonca,
152 F.3d 1184, 1187–88 (9th Cir. 1998).
10 MILLER V. C.H. ROBINSON WORLDWIDE

61 (quoting Dilts, 769 F.3d at 644); see H.R. Conf. Rep. 103-
677, at 82–88 (1994), reprinted in 1994 U.S.C.C.A.N. 1715,
1754–60 (confirming that in passing the FAAAA, Congress
was focused on economic deregulation of the trucking
industry).

No circuit court has yet considered an FAAAA
preemption challenge brought by a broker, and district courts
have reached differing conclusions as to whether negligence
claims like Miller’s are “related to” broker services.
Compare Scott v. Milosevic, 372 F. Supp. 3d 758, 769–70
(N.D. Iowa 2019) (holding that personal injury claims
alleging negligence are not “related to” broker services),
with Loyd v. Salazar, 416 F. Supp. 3d 1290, 1295–98 (W.D.
Okla. 2019) (holding that such claims are “related to” broker
services), and Creagan v. Wal-Mart Transp., LLC, 354 F.
Supp. 3d 808, 813 (N.D. Ohio 2018) (same). District courts
are also divided on the question of whether the safety
exception applies in this context. Compare Lopez v. Amazon
Logistics, Inc., No. 3:19-CV-2424-N, __ F. Supp. 3d __,
2020 WL 2065624, at *6–8 (N.D. Tex. Apr. 28, 2020)
(“[P]ersonal injury tort claims, including a negligent-hiring
claim, are within the scope of section 14501(c)(2)’s
exception.”), with Creagan, 354 F. Supp. 3d at 813–14
(holding that the safety exception does not apply to
negligence claims asserted against brokers, including those
arising out of personal injuries).

B. Miller’s Negligence Claim Is “Related to” Broker
Services

Miller contends that his negligence claim against C.H.
Robinson is not preempted because it is not “meaningfully
distinguish[able]” from three state laws we have held escape
preemption under the FAAAA. We therefore begin our
discussion by briefly reviewing those three cases—
 MILLER V. C.H. ROBINSON WORLDWIDE 11

Californians For Safe & Competitive Dump Truck
Transportation v. Mendonca, 152 F.3d 1184 (9th Cir. 1998),
Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014),
and California Trucking Association v. Su, 903 F.3d 953 (9th
Cir. 2018).

In Mendonca, we held that the FAAAA does not prohibit
California from enforcing its prevailing wage law (the
“CPWL”) against motor carriers. The CPWL requires
contractors and subcontractors awarded public works
contracts to pay their workers no less than the prevailing
wage in a given locality. See Cal. Lab. Code § 1771. We
reasoned that although the CPWL “in a certain sense is
‘related to’ [motor carrier] prices, routes and services . . . the
effect is no more than indirect, remote and tenuous,” and it
does not “acutely interfer[e] with the forces of competition.”
Mendonca, 152 F.3d at 1189. Then, in Dilts, we held that
California’s meal and rest break laws are not “related to”
motor carrier prices, routes, or services because they “do not
set prices, mandate or prohibit certain routes, or tell motor
carriers what services they may or may not provide, either
directly or indirectly.” 769 F.3d at 647. Instead, they are
“normal background rules for almost all employers doing
business in [California],” and the fact “motor carriers may
have to take [them] into account . . . when allocating
resources and scheduling routes” is insufficient to show that
they are preempted. Id. Most recently, we held that the
FAAAA does not preempt the use of California’s common-
law test for determining whether a motor carrier has properly
classified its drivers as independent contractors because it is
not “related to” carrier prices, routes, or services. See Su,
903 F.3d at 957.

In arguing that Mendonca, Dilts, and Su “must control
here,” Miller overlooks an important distinction between his
12 MILLER V. C.H. ROBINSON WORLDWIDE

claim and the laws at issue in those cases—namely, the point
at which the law affects a broker (or motor carrier’s)
business. As we have previously observed:

What matters [for purposes of preemption
under the FAAAA] is not solely that the law
is generally applicable, but where in the chain
of a motor carrier’s business it is acting to
compel a certain result (e.g., consumer or
workforce) and what result it is compelling
(e.g., a certain wage, non-discrimination, a
specific system of delivery, a specific person
to perform the delivery).

Su, 903 F.3d at 966. The wage and hour laws at issue in
Mendonca and Dilts, for example, “[i]n effect . . . compelled
new terms in motor carriers’ agreements with their workers,”
but we permitted “California to interfere with th[at]
relationship.” Id. at 963. Miller’s claim, by contrast, seeks
to hold C.H. Robinson liable at the point at which it provides
a “service” to its customers.

Here, as Miller concedes, the “selection of motor carriers
is one of the core services of brokers.” 5 See 49 U.S.C.
§ 13102(2) (defining “broker,” as it is used in the FAAAA,
to mean “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”); see also 49 C.F.R. § 371.2
(defining “brokerage service” as “the arranging of

5
Because C.H. Robinson has not argued that Miller’s claim is
“related to” its prices or routes, we only address whether it is “related to”
C.H. Robinson’s services.
 MILLER V. C.H. ROBINSON WORLDWIDE 13

transportation”). Because Miller’s negligence claim seeks
to interfere at the point at which C.H. Robinson “arrang[es]
for” transportation by motor carrier, it is directly
“connect[ed] with” broker services in a manner that was
lacking in Mendonca, Dilts, and Su. See Dilts, 769 F.3d
at 649 (observing that state laws have “an impermissible
effect” when they “interfer[e] at the point that a carrier
provides services to its customers”).

We find Northwest, Inc. v. Ginsberg, 572 U.S. 273
(2014) instructive on this point. There, the Supreme Court
held that the ADA preempted a breach of the implied
covenant of good faith and fair dealing claim that stemmed
from an airline terminating the plaintiff from its frequent-
flyer program. 6 Id. at 284–85. The claim “clearly” had the
forbidden “connection with” air carrier “services, i.e., access
to flights and to higher service categories,” as well as air
carrier prices. Id. at 284. In reaching this conclusion, the
Court rejected the plaintiff’s argument that he was contesting
his termination from the program—not his “access to flights
and upgrades”—because it “ignore[d] [his] reason for
seeking reinstatement of his membership, i.e., to obtain
reduced rates and enhanced services.” Id. at 284–85. We
have found no reasonable ground for distinguishing
Ginsberg from this case: Just as a claim that seeks
reinstatement of frequent-flyer benefits has a forbidden
“connection with” air carrier services, a claim that imposes
an obligation on brokers at the point at which they arrange
for transportation by motor carrier has a “connection with”
broker services.

6
Because the FAAAA is modeled on the ADA, “ADA preemption
cases can . . . be consulted to analyze FAAAA preemption.” Su,
903 F.3d at 960.
14 MILLER V. C.H. ROBINSON WORLDWIDE

Miller resists this conclusion by arguing that his claim
cannot be preempted because it does not “bind” C.H.
Robinson to “specific prices, routes, or services.” We have
occasionally suggested that preemption occurs only when a
state law operates in this way. In American Trucking
Associations, for instance, we observed that in a “borderline”
case, “the proper inquiry is whether the provision, directly
or indirectly, ‘binds the carrier . . . to a particular price, route
or service . . . .’” 60 F.3d at 397 (quoting Air Transp. Ass’n
of Am. v. City & County of San Francisco, 266 F.3d 1064,
1072 (9th Cir. 2001)); see also Dilts, 769 F.3d at 646
(“[L]aws mandating motor carriers’ use (or non-use) of
particular prices, routes, or services in order to comply with
the law are preempted.”). But even these cases
acknowledged that the scope of FAAAA preemption is
broader than this language suggests. See, e.g., Dilts,
769 F.3d at 647 (describing laws that are preempted under
the FAAAA as those that “directly or indirectly mandate,
prohibit, or otherwise regulate certain prices, routes, or
services” (emphasis added)).

We note also that 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. As an
initial matter, there is no question that common-law claims
are within the scope of the preemption clause. See Ginsberg,
572 U.S. at 284 (“[W]e conclude that the phrase ‘other
provision having the force and effect of law’ includes
common-law claims.”). Yet common-law claims typically
regulate behavior by imposing broad standards of conduct,
not by compelling individuals to engage in (or refrain from
engaging in) any specific conduct. See Medtronic, 518 U.S.
at 489 (observing that common-law actions enforce “general
duties”). A negligence claim, for example, demands that an
individual or entity exercise ordinary care; it does not require
 MILLER V. C.H. ROBINSON WORLDWIDE 15

that this standard of care be satisfied in any particular
manner. It therefore does not make sense in this context to
ask whether a claim “binds” a broker to a particular price,
route or service. See Ginsberg, 572 U.S. at 284–85 (finding
the plaintiff’s implied covenant claim preempted not
because it bound the airline to a particular “price” or
“service,” but because the plaintiff brought the claim to
reinstate his access to the “reduced rates and enhanced
services” available through the airline’s frequent-flyer
program).

Nor are we persuaded by Miller’s argument that the
reasoning of Charas v. Trans World Airlines, Inc., 160 F.3d
1259 (9th Cir. 1998) (en banc), is applicable here. In
Charas, we considered whether negligence claims stemming
from the provision of certain in-flight amenities, such as
luggage handling and beverage services, were preempted
under the ADA. We held that Congress used the term
“service” in the ADA in the “public utility sense” to refer to
“the provision of air transportation to and from various
markets at various times,” but not to refer to the various
amenities airlines offer their customers. Id. at 1266.
Contrary to Miller’s suggestion, there is no tension between
Charas’s construction of the term “service” and our
conclusion that when brokers arrange for transportation by
motor carrier, they perform a “service” within the meaning
of the FAAAA. Even assuming brokers offer services
analogous to airline amenities, motor-carrier selection is
plainly not such a service. It is instead the type of “public
utility” service that falls squarely within the scope of the
FAAAA. 7 See Nat’l Fed’n of the Blind v. United States,
813 F.3d 718, 727 (9th Cir. 2016) (confirming that the term

7
The FAAAA, like the ADA, does not define the term “service.”
See 49 U.S.C. § 13102.
16 MILLER V. C.H. ROBINSON WORLDWIDE

“service” in the FAAAA is “focused on ‘essential details of
the carriage itself’” (quoting Rowe, 552 U.S. at 373)).

C. Miller’s Negligence Claim Falls Within the Safety
Exception

Miller contends that even if his negligence claim is
“related to” broker services, it is saved from preemption by
the safety exception. This exception provides that the
FAAAA “shall not restrict the safety regulatory authority of
a State with respect to motor vehicles.” 49 U.S.C.
§ 14501(c)(2)(A). In response, C.H. Robinson argues that
“the safety regulatory authority of a State” does not
encompass common-law claims, and even assuming that it
does, Miller’s claim is not “with respect to motor vehicles.”
We consider each of these arguments in turn.

1. The “safety regulatory authority of a State”
encompasses common-law tort claims.

The FAAAA does not define the phrase “the safety
regulatory authority of a State,” and we find little else in the
FAAAA’s text that clarifies its scope. In general, however,
courts have construed the safety exception broadly. See
Ours Garage, 536 U.S. at 440 (rejecting “the narrowest
possible construction of the [safety] exception”); Cal. Tow
Truck Ass’n, 807 F.3d at 1022 (“Case law . . . has on the
whole given a broad construction to the safety regulation
exception.” (quoting VRC LLC v. City of Dallas, 460 F.3d
607, 612 (5th Cir. 2006)). With that background in mind,
and in light of the purposes of the FAAAA in general and
the safety exception in particular, we conclude that “the
safety regulatory authority of a State” encompasses
common-law tort claims.
 MILLER V. C.H. ROBINSON WORLDWIDE 17

As discussed above, in passing the FAAAA, Congress
was primarily concerned with the States regulating economic
aspects of the trucking industry by, for example, enacting
tariffs, price regulations, and other similar laws. See Su,
903 F.3d at 960. 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.” Ours
Garage, 536 U.S. at 439 (quoting 49 U.S.C.
§ 14501(c)(2)(A)). That power plainly includes the ability
to regulate safety through common-law tort claims. See
Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir.
2006) (“Historically, common law liability has formed the
bedrock of state regulation, and common law tort claims
have been described as ‘a critical component of the States’
traditional ability to protect the health and safety of their
citizens.’” (quoting Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 544 (1992) (Blackmun, J., concurring in part and
dissenting in part))).

We find nothing in the FAAAA’s legislative history that
suggests Congress intended to eliminate this important
component of the States’ power over safety. A House
Conference Report, for instance, notes that a key interest
group abandoned its opposition to the FAAAA subject to
“some conditions that would allow regulatory protection to
continue for non-economic factors, such as . . . safety,” and
that the conferees “attempted to address these conditions” by
carving out the various exceptions in § 14501(c)(2). H.R.
Conf. Rep. 103-677, at 88. This broad reference to “safety”
cuts against the narrow construction C.H. Robinson
advances. See Apollo Grp., Inc. v. Avnet, Inc., 58 F.3d 477,
480 (9th Cir. 1995) (observing that “safety rationale[s]
underl[ie] the law of tort”).
18 MILLER V. C.H. ROBINSON WORLDWIDE

We find additional support for our conclusion that “the
safety regulatory authority of a State” encompasses some
common-law claims in American Trucking Associations,
Inc. v. City of Los Angeles, 569 U.S. 641 (2013). There, the
Supreme Court considered whether requirements in a
contract between the City of Los Angeles and trucking
companies providing drayage services at the Port of Los
Angeles (the “Port”) fell within the market-participant
exception to preemption. 8 That exception applies where, for
example, a State “act[s] as a private party” by “contracting
in a way that the owner of an ordinary commercial enterprise
could mimic.” Id. at 651.

The Supreme Court held that the market-participant
doctrine did not apply, and that the requirements at issue
were “preempted as ‘provision[s] having the force and effect
of law.’” Id. at 648 (alteration in original) (quoting
49 U.S.C. § 14501(c)(1)). Significantly, although the
requirements were contained in contracts between the City
and the trucking companies, a local ordinance authorized the
City to punish violations through criminal sanctions. Id.
at 650; see id. at 651 (“Contractual commitments resulting
not from ordinary bargaining . . . , but instead from the threat
of criminal sanctions manifest the government qua
government, performing its prototypical regulatory role.”).
In reaching this conclusion, American Trucking reasoned
generally that the FAAAA’s preemption clause “targets the
State acting as a State, not as any market actor—or otherwise

8
Two requirements were alleged to fall within that exception in
American Trucking. One required trucking companies operating at the
Port to affix on each of their trucks a placard with a phone number for
reporting environmental and safety concerns, and the other required the
companies to submit an off-street parking plan for their trucks. Am.
Trucking Ass’ns, 569 U.S. at 645.
 MILLER V. C.H. ROBINSON WORLDWIDE 19

said, the State acting in a regulatory rather than proprietary
mode.” Id. at 650. Section 14501(c)(1) therefore “draws a
rough line between a government’s exercise of regulatory
authority and its own contract-based participation in a
market.” Id. at 649.

Of course, the Supreme Court made these observations
about the States’ “regulatory authority” in the context of
clarifying the scope of the FAAAA’s preemption clause, not
the safety exception. However, we think that what American
Trucking said about that authority is relevant to the scope of
the exception. In particular, if the preemption provision
targets “a government’s exercise of regulatory authority,”
id., and that provision encompasses common-law claims, see
Ginsberg, 572 U.S. at 284, then surely “the safety regulatory
authority of a State” also includes at least some common-law
claims.

A number of other considerations support our
interpretation as well. First, if C.H. Robinson were correct
that the 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, 9 but could
not possibly be saved from preemption in states that have not
done the same. It seems unlikely that Congress would have
made the availability of this exception dependent on

9
“[U]nlike many jurisdictions, California’s general tort law is
codified in its civil code.” Ileto v. Glock, Inc., 565 F.3d 1126, 1132–33
(9th Cir. 2009); see, e.g., Cal. Civ. Code § 1714(a) (“Everyone is
responsible, not only for the result of his or her willful acts, but also for
an injury occasioned to another by his or her want of ordinary care or
skill in the management of his or her property or person . . . .”).
20 MILLER V. C.H. ROBINSON WORLDWIDE

codification, particularly in light of the FAAAA’s goal of
uniformity. Su, 903 F.3d at 960.

Second, while it is possible to construe “the safety
regulatory authority of a State” more narrowly, “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.’” CTS Corp. v. Waldburger,
573 U.S. 1, 19 (2014) (quoting Altria Grp., Inc. v. Good,
555 U.S. 70, 77 (2008)). Because a narrower construction
of this clause would place a large body of state law beyond
the reach of the exception, we find it appropriate to interpret
the clause broadly. See id. (describing this approach as
“consistent with both federalism concerns and the historic
primacy of state regulation of matters of health and safety”
(quoting Medtronic, 518 U.S. at 485)).

We do not find any of C.H. Robinson’s
counterarguments persuasive. C.H. Robinson first focuses
on the precise language the Supreme Court used in Ours
Garage to describe the purpose underlying the safety
exception—to leave intact “the preexisting and traditional
state police power over safety,” 536 U.S. at 439—and argues
that because the “police power” may only be exercised by
the state legislatures, the safety exception excludes common-
law claims. The district court relied on similar reasoning in
finding the exception unavailable. While the “police power”
does generally refer to the States’ power to legislate, 10 we
think this argument reads too much into Ours Garage. At
10
See, e.g., Bond v. United States, 572 U.S. 844, 854 (2014) (“The
States have broad authority to enact legislation for the public good—
what we have often called a ‘police power.’”); Budd v. Madigan,
418 F.2d 1032, 1035 (9th Cir. 1969) (“[W]hen the subject lies within the
police power of the state, even debatable questions as to reasonableness
are not for the Courts, but for the legislature . . . .”).
 MILLER V. C.H. ROBINSON WORLDWIDE 21

issue in that case were municipal regulations governing tow
truck operations—an undisputed exercise of the “safety
regulatory authority of a State” and of the “police power.”
The Supreme Court therefore had no reason to consider
whether the safety exception is broader than this language
suggests. And, as noted, we have found no indication in the
FAAAA’s legislative history that Congress intended to limit
the safety exception in this way.

Nor are we persuaded by C.H. Robinson’s argument that
Congress must have intended to limit the exception to
legislative and regulatory enactments given how it has
defined “regulatory authority” in other statutes. None of the
statutes C.H. Robinson identifies supplies a general
definition for the term “regulatory authority”; instead, in
each, the term refers to a specific type of agency. 11 These
statutes also undercut C.H. Robinson’s own argument that
“the safety regulatory authority of a State” refers to the
power to enact legislation and regulations since each refers
only to an administrative body. 12

11
See, e.g., 42 U.S.C. § 6807a(e) (defining “State regulatory
authority” as “any State agency which has ratemaking authority with
respect to the sale of electric energy by any electric utility” (cross-
referencing 16 U.S.C. § 2602(17))); 15 U.S.C. § 7201(1) (“The term
‘appropriate State regulatory authority’ means the State agency or other
authority responsible for the licensure or other regulation of the practice
of accounting in the State . . . .”).

12
C.H. Robinson also contends that the Supreme Court has
“consistently distinguished between state law tort claims and state
regulation” when analyzing preemption. C.H. Robinson does not,
however, explain how this general observation has any bearing on the
interpretive question presented here. Nor do any of the cases C.H.
Robinson cites assist us. The preemption clause in Sprietsma v. Mercury
Marine, for instance, bears little resemblance to the safety exception.
22 MILLER V. C.H. ROBINSON WORLDWIDE

Lastly, C.H. Robinson juxtaposes the safety exception
against the preemption provision, reasoning that Congress
intentionally crafted an exception that encompasses fewer
sources of state law than the preemption provision.
Compare 49 U.S.C. § 14501(c)(1) (“[A] State . . . may not
enact or enforce a law, regulation, or other provision having
the force and effect of law . . . .” (emphasis added)), with id.
§ 14501(c)(2)(A) (“Paragraph (1) . . . shall not restrict the
safety regulatory authority of a State . . . .” (emphasis
added)). As support for this argument, C.H. Robinson relies
on Russello v. United States for the proposition that when
“Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” 464 U.S.
16, 23 (1983) (quoting United States v. Wong Kim Bo,
472 F.2d 720, 722 (5th Cir. 1972)).

The Supreme Court rejected a similar argument in Ours
Garage, and we do so here as well. Ours Garage held that
municipal regulations governing tow truck operations fell
within the safety exception even though the exception refers
only to the “safety regulatory authority of a State.” 536 U.S.
at 442 (quoting 49 U.S.C. § 14501(c)(2)(A)). An argument
“of some force” was presented that Congress did not intend
this result given the inclusion of the term “political
subdivisions of a State” in the preemption clause and

See 537 U.S. 51, 63 (2002) (holding that 46 U.S.C. § 4306, which
prohibits the States from “establish[ing], continu[ing] in effect, or
enforc[ing] a law or regulation establishing a . . . safety standard,” does
not encompass common-law claims because “the article ‘a’ before ‘law
or regulation’ implies a discreteness” that is absent from the common
law, and if “law” were interpreted broadly so as to include common-law
claims, it would render the express reference to “regulation”
superfluous).
 MILLER V. C.H. ROBINSON WORLDWIDE 23

exclusion of that term from the safety exception. Id. at 434.
But Ours Garage ultimately determined that the “requisite
‘clear and manifest indication that Congress sought to
supplant local authority’” was lacking for a number of
reasons. Id. (quoting Wis. Pub. Intervenor v. Mortier,
501 U.S. 597, 611 (1991)).

First, the safety exception does not actually “borrow”
any language from the preemption clause. See id. at 435–36
(“The Russello presumption that the presence of a phrase in
one provision and its absence in another reveals Congress’
design . . . grows weaker with each difference in the
formulation of the provisions under inspection.”). Second,
section 14501(c)(2) comprises three separate exceptions,
and each is stated differently. 13 See id. 435 n.2

13
Section 14501(c)(2) provides, in full:

(2) Matters not covered.–Paragraph (1)–

(A) shall not restrict the safety regulatory authority of
a State with respect to motor vehicles, the authority of
a State to impose highway route controls or limitations
based on the size or weight of the motor vehicle or the
hazardous nature of the cargo, or the authority of a
State to regulate motor carriers with regard to
minimum amounts of financial responsibility relating
to insurance requirements and self-insurance
authorization;

(B) does not apply to the intrastate transportation of
household goods; and

(C) does not apply to the authority of a State or a
political subdivision of a State to enact or enforce a
law, regulation, or other provision relating to the
regulation of tow truck operations performed without
24 MILLER V. C.H. ROBINSON WORLDWIDE

(characterizing these differences as “relevant to the
interpretive weight that may be attached to the variation
among [the exceptions]”). For these same reasons, the fact
the safety exception concisely refers to “the regulatory
authority of a State,” instead of spelling out the various ways
the States can exercise that broad power, does not clearly
signal that Congress intended to exclude all common-law
claims from the exception’s reach.

2. Negligence claims against brokers that stem from
motor vehicle accidents are “with respect to
motor vehicles.”

C.H. Robinson also contends that Miller’s claim does not
fall within the safety exception because it does not satisfy
the “with respect to motor vehicles” clause. Specifically,
C.H. Robinson argues that because it neither owned the
vehicle nor selected the driver who caused the accident,
Miller’s claim is not “with respect to motor vehicles.” Miller
responds that his claim indirectly “regulate[s] the use of
motor vehicles” by “creating incentives for brokers to select
safer carriers . . . and thereby reduce the risk of trucking
accidents.”

We have previously held that the phrase “with respect
to” in the safety exception is synonymous with “relating to.”
Cal. Tow Truck Ass’n, 807 F.3d at 1021 (quoting In re Plant
Insulation Co., 734 F.3d 900, 910 (9th Cir. 2013)).
“Consequently, the FAAAA’s safety exception exempts
from preemption safety regulations that ‘hav[e] a connection

the prior consent or authorization of the owner or
operator of the motor vehicle.

49 U.S.C. § 14501(c)(2).
 MILLER V. C.H. ROBINSON WORLDWIDE 25

with’ motor vehicles,” whether directly or indirectly. 14 Id.
at 1021–22 (quoting Dan’s City Used Cars, 569 U.S. at 260).
For example, we have held that the safety exception applies
to municipal regulations governing who may obtain a tow
truck permit, including a requirement that permit applicants
disclose their criminal history. Id. at 1026–27. In reaching
this conclusion, we rejected the argument that the “valid
safety rationales” in this context are limited “to those
concerned only with the safe physical operation of the tow
trucks themselves.” Id. at 1023. “Rather, regulations that
are ‘genuinely responsive’ to the safety of other vehicles and
individuals involved in the towing process may also be
exempted from preemption.” 15 Id.

If criminal history disclosure requirements for tow truck
drivers have the requisite “connection with” motor vehicles,

14
Although not argued by the parties, we note that Medtronic, Inc.
v. Lohr, 518 U.S. 470 (1996) gave a narrower construction to the phrase
“with respect to.” See id. at 501 (holding that negligence claims
stemming from the alleged defective manufacturing and labeling of a
pacemaker were not preempted by 21 U.S.C. § 360k(a) in part because
the “common-law requirements” at issue “were not specifically
developed ‘with respect to’ medical devices” (quoting 21 U.S.C.
§ 360k(a))). We do not find Medtronic’s construction of that phrase
applicable here because we are interpreting a savings clause, not a
preemption clause.

15
A number of our sister circuits have given the safety exception a
similarly broad construction. See, e.g., Cole v. City of Dallas, 314 F.3d
730, 732–35 (5th Cir. 2002) (holding that an ordinance prohibiting
individuals convicted of specified criminal offenses from obtaining a tow
truck permit fell within the safety exception because the regulation has,
“at its core, [a] concern for safety”); Ace Auto Body & Towing, Ltd. v.
City of N.Y., 171 F.3d 765, 768–69 (2d Cir. 1999) (rejecting the argument
that the safety exception “extends only to safety regulation of the
mechanical components of motor vehicles . . . and not to municipal
management of vehicular accidents”).
26 MILLER V. C.H. ROBINSON WORLDWIDE

then negligence claims against brokers that arise out of
motor vehicle accidents must as well: Neither directly
regulates motor vehicles, but both promote safety on the
road. See id. at 1025 (noting that the safety exception
“extends to regulations that protect safety in connection with
motor vehicles towed and the individuals who interact with
tow truck operators and firms”); see also Ace Auto Body &
Towing, Ltd. v. City of New York, 171 F.3d 765, 774 (2d Cir.
1999) (construing the safety exception as “encompass[ing]
the authority to enact safety regulations with respect to
motor vehicle accidents and break-downs” because such a
construction “fully comports with Congress’ purpose to
leave intact state and local safety regulatory authority”).

We hold that 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.

REVERSED and REMANDED.

FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:

I concur in parts I, II and III A, B, C.1 of the majority
opinion. However, I respectfully dissent from part C.2.
Therefore, I would affirm the district court’s decision.

Put succinctly, in my opinion, Miller’s claim does not
come within 49 U.S.C. § 14501(c)(2)(A) (the “safety
exception”). The safety exception provides that
§ 14501(c)(1) “shall not restrict the safety regulatory
authority of a State with respect to motor vehicles.”
 MILLER V. C.H. ROBINSON WORLDWIDE 27

49 U.S.C. § 14501(c)(2)(A). While I agree that the safety
exception includes state common law tort claims in
principle, in my opinion, it does not apply to Miller’s
negligence claim against C.H. Robinson because that claim
does not amount to one under “the safety regulatory
authority of a State with respect to motor vehicles.” Id. 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.

That attenuated connection is simply too remote for the
safety exception to encompass Miller’s negligence claim. In
holding otherwise, the majority opinion relies on cases that
applied the safety exception to regulations of the tow truck
business, such as those regarding the criminal histories of
would-be tow truck drivers 1 and prohibiting certain

1
See Cal. Tow Truck Ass’n v. City & County of San Francisco,
807 F.3d 1008, 1026–27 (9th Cir. 2015) (requiring tow truck driver
permit applicants to list all arrests for criminal offenses); Cole v. City of
Dallas, 314 F.3d 730, 732, 734–35 (5th Cir. 2002) (per curiam)
(prohibiting those convicted of certain crimes from receiving tow truck
driver permits); Ace Auto Body & Towing, Ltd. v. City of New York, 171
F.3d 765, 776 (2d Cir. 1999) (tow truck driver criminal history
requirements).
28 MILLER V. C.H. ROBINSON WORLDWIDE

dangerous conduct by drivers while operating tow trucks. 2
But in those cases, there was a very close connection to the
actual operational safety of motor vehicles. Indeed, the
regulatory requirements regarding towing were “‘genuinely
responsive’ to [a] set of real safety concerns” related to
motor vehicles that had motivated the regulations in the first
place. Cal. Tow Truck, 807 F.3d at 1026; see id. at 1023. By
contrast, Miller’s claim is not “with respect to motor
vehicles,” within the meaning of the exception. See
§ 14501(c)(2)(A). Rather, it is with respect to C.H.
Robinson’s broker services, 3 which are only tangentially
“relat[ed] to” 4 or “connect[ed] with” 5 motor vehicles. In
other words, while one can envision an almost unending
series of connections, there comes a point at which the series
must end as a legal matter. See Dan’s City Used Cars, Inc.
v. Pelkey, 569 U.S. 251, 260–61, 133 S. Ct. 1769, 1778, 185
L. Ed. 2d 909 (2013); cf. Elias v. Arthur Andersen & Co. (In
re Fin. Corp. of Am. Shareholder Litig.), 796 F.2d 1126,
1130–31 (9th Cir. 1986); Palsgraf v. Long Island R.R. Co.,
162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting).
Miller’s claim is beyond that point. Allowing it to avoid
preemption would inevitably conscript brokers into a
parallel regulatory regime that required them to evaluate and
screen motor carriers (which are already subject to federal

2
Ace Auto Body, 171 F.3d at 769, 774–75 (regulations to curtail tow
truck drivers’ practice of competitively racing to accident scenes).

3
See Opinion at 13.

4
Cal. Tow Truck, 807 F.3d at 1021 (internal quotation marks
omitted).

5
Id. (internal quotation marks omitted).
 MILLER V. C.H. ROBINSON WORLDWIDE 29

registration requirements 6 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. That is a far cry from municipal
ordinances that require tow truck driver applicants to
disclose their criminal histories, or that impose a rotational
system to discourage competing tow truck drivers from
racing each other to accident scenes. See Cal. Tow Truck,
807 F.3d at 1020–23, 1026–27; Cole, 314 F.3d at 732, 734–
35; Ace Auto Body, 171 F.3d at 774–76. The words of the
safety exception cannot be stretched that far.

Despite the broad language that we have used in
applying the safety exception to some municipal towing
regulations, 7 I would not unmoor that reasoning from the
factual circumstances presented there, nor would I transpose
it to the distinctly different area of broker services. Rather,
we should hold that Miller’s negligence claim is expressly
preempted and the safety exception is inapplicable.

Thus, while I concur in much of what the majority
decides, ultimately I respectfully dissent.

6
See 49 U.S.C. § 13902(a)(1).

7
Cal. Tow Truck, 807 F.3d at 1023.