FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLEN MILLER,

Plaintiff-Appellant,

v.

C.H. ROBINSON WORLDWIDE, INC.;

RONEL R. SINGH; RHEAS TRANS,

INC.; KUWAR SINGH, DBA RT 

Service,

Defendants-Appellees,

and

COSTCO WHOLESALE CORPORATION;

LOTUS FOODS, INC.; PRIDE 

INDUSTRIES,

Defendants.

No. 19-15981

D.C. No.

3:17-cv-00408-

MMD-WGC

OPINION

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 semitractor 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 preemption 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 nonuniform 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 commonlaw 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 frequentflyer 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 commonlaw 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” (crossreferencing 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 offensesfrom 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 drivers1 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 requirements6 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.