                  THE THIRTEENTH COURT OF APPEALS

                                   13-17-00401-CV

       Texas Windstorm Insurance Association, Brush Country Claims, Ltd., and
                                 David Gutierrez
                                       v.
                           David James and Sue James

                                  On Appeal from the
                    60th District Court of Jefferson County, Texas
                          Trial Court Cause No. B-183,464

                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes the judgment of the trial court should be reversed and rendered in

part and affirmed in part. The Court orders the judgment of the trial court REVERSED

AND RENDERED IN PART and AFFIRMED IN PART. Costs of the appeal are

adjudged against appellants.

      We further order this decision certified below for observance.

August 20, 2020


437 P.2d 642 (1968)
STATE of Alaska, Appellant,
v.
David Neil PARKS, Appellee.
No. 858.
Supreme Court of Alaska.
February 21, 1968.
D.A. Burr, Atty. Gen., Juneau, Thomas E. Curran, Jr. and Robert N. Opland, Dist. Attys. and Russell J. Gallagher, Asst. Dist. Atty., Anchorage, for appellants.
William J. Bailey, Anchorage, for appellee.
Before NESBETT, C.J., and DIMOND and RABINOWITZ, JJ.

OPINION
DIMOND, Justice.
Appellee was indicted for the crime of burglary. One witness had testified before *643 the grand jury  officer Bivens, an investigator for the Alaska State Police. While officer Bivens was testifying at the trial during the presentation of the state's case in chief, appellee moved to dismiss the indictment on the ground that it was based solely on hearsay testimony, a fact that was conceded by the state. The trial court dismissed the indictment, stating that it did so "under the authority of the minority rule and the indications of the Supreme Court in the Merrill case and in the Shelton case * * *." The state has appealed, claiming that the indictment was sufficient and that its dismissal was error.[1]
In State v. Shelton[2] we considered the question of whether an indictment was sufficient to require a defendant to stand trial where one of five witnesses who testified before the grand jury testified at the trial somewhat at variance with the testimony the witness gave when before the grand jury. Since art. I, section 8 of the Alaska Constitution[3] is identical with a like provision of the Fifth Amendment to the Federal Constitution, we had occasion in Shelton to refer to the United States Supreme Court's decision in Costello v. United States[4]. There the court was considering the question of whether under the Fifth Amendment a defendant should be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him.[5] The Supreme Court said:
[N]either the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * *
An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.[6]
As to Costello, we said in Shelton:
[T]he broad declaration made in that case, not considered in relation to the factual situation there presented, would appear to preclude the dismissal of an indictment even where it appeared that "no evidence had been offered that rationally established the facts", or that the indictment was returned "substantially upon evidence which was untrustworthy". We would have serious misgivings about concurring in such a result; for in the extreme and yet conceivable situation it could mean that a defendant would be obliged to stand the expense and humiliation of a public trial where the grand jury had acted either on no evidence at all or solely on the basis of evidence that would not support a guilty verdict after trial. This would rob the constitutional right of much of its protective value, and would not be in accord with what we have stated to be a vital function of the grand jury  the protection of the innocent against oppression and unjust prosecution. [Footnotes omitted][7]
In Merrill v. State[8] we considered the question of whether an indictment was sufficient when based on the uncorroborated *644 testimony of an accomplice. We mentioned the fact that
In Shelton we left open the question whether an indictment based solely on hearsay is subject to dismissal.[9]
That question is now before us in this case.
We intimated in Shelton[10] that we would hold an indictment to be insufficient and subject to dismissal if it appeared that no evidence was presented to the grand jury that rationally established the facts. This is a rule suggested by Judge Learned Hand in the Costello case when it was before the Court of Appeals for the Second Circuit.[11] We now adopt that rule for this jurisdiction.
Under such a rule, the question is one of sufficiency of the evidence  whether it is adequate to persuade reasonable minded persons that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense.[12] Sufficiency of the evidence is the test prescribed by statute.[13] It is not required that the evidence be the kind that would not fall within one of the exclusionary rules of evidence and therefore would be admissible at the trial even though objected to by a defendant.
Hearsay is involved when one attempts to get into evidence a statement made by one who is not testifying.[14] Under the exclusionary rules of evidence, hearsay is inadmissible unless it falls within one of the numerous exceptions to the hearsay rule. But it is inadmissible only if objected to by the party against whom it is offered. If there is no objection, then the hearsay may properly be considered by the trier of fact in making factual determinations, and it may be given its logical probative effect as if it were admissible.[15] The hearsay rule involves "no assertion that hearsay statements are without probative force or that they furnish no logical basis for conclusions of fact."[16] In fact, the courts by multiplying exceptions to the hearsay rule "reveal their conviction that relevant hearsay evidence normally has real probative value, and is capable of valuation by a jury * * *."[17] As Judge Hand said in the Costello case:
Indeed, we conduct our most serious affairs upon the strength of it [hearsay]; it would be impossible to carry on a day's business without it.[18]
Since hearsay evidence has probative force and may furnish a logical basis for conclusions of fact, it cannot be said that because evidence presented to the grand jury was hearsay it did not rationally establish the facts sought to be established. Hearsay, if relevant, is evidence, and if it is such that, unexplained or uncontradicted, it would persuade a grand jury that it would warrant the conviction of the defendant at the trial,[19] then it is sufficient evidence to justify the finding of an indictment. It is true that the very same hearsay evidence if attempted to be introduced at the trial might be excluded if objected to by the defendant. *645 But this does not mean that such evidence considered for its probative effect would not warrant a conviction. It means only that the petit jury would not have the opportunity to decide whether that evidence would warrant a conviction because it would not be considered by them. The hearsay evidence may well warrant a conviction. The point is that the petit jury is not required to make that determination because the evidence is excluded from their consideration.
On the other hand that is the very determination that a grand jury must make  whether certain evidence, if unexplained or uncontradicted, will warrant a conviction if presented to a petit jury. It is not the function of the grand jury to decide whether or not the evidence considered by them will be admissible at the trial, which is a decision they would be called upon to make if the statutory requirement that indictments be founded upon sufficient evidence be construed as meaning only such evidence as is not subject to exclusion at the trial under one or more of the exclusionary rules of evidence. Traditionally, and as a practical matter, that is not the grand jury's function. A grand jury is generally made up of laymen without any specialized legal knowledge or training. There is no judge or other authority presiding over grand jury proceedings to make rulings each time a question of admissibility or inadmissibility of evidence arises. The defendant is rarely present[20], so the question of whether he would object to hearsay evidence or waive the objection is not determinable. It would severely impede the functioning of a grand jury if it were obliged to consider only evidence which, assuming the defendant would object to its introduction in another proceeding before a petit jury, would be excluded under one of the many exclusionary rules of evidence and would not come within one of the exceptions to a particular rule.
We hold that hearsay evidence may rationally establish facts and therefore may be sufficient evidence to justify the findings of an indictment by a grand jury. We do not decide in this case whether the particular hearsay evidence involved was sufficient for that purpose, because that question is not before us. We only decide that an indictment is not insufficient or invalid and subject to dismissal when founded upon hearsay evidence alone.
The order dismissing the indictment is reversed. The case is remanded to the superior court for trial.
RABINOWITZ, Justice (concurring).
In State v. Shelton[1] this court said that one of the purposes of grand juries, as provided for in article I, section 8 of the Alaska constitution, is to carry out the vital function of protection of the innocent against oppression and unjust prosecution. Unless this court is prepared to change its evaluation of the role that grand juries actually play, or should play, in our society, rejection of the Supreme Court of the United States' construction of the fifth amendment, announced in Costello v. United States,[2] is indicated.
If the institution of the grand jury is viewed as an anachronism, then Costello has appeal, for there the Supreme Court held that an indictment proper on its face returned by a legally constituted and unbiased grand jury is sufficient to require a *646 trial on the merits. The Supreme Court in Costello also emphasized the likelihood of interminable delays and abuses of criminal practice which would result if indictments were held subject to attack on grounds of the inadequacy, or incompetency, of the evidence which was presented to the grand jury. Admittedly, these are factors which must be considered in the shaping of any system for the administration of criminal justice.[3] Yet it seems to me that our system of criminal laws must include procedures whereby cases in which there is an absence of reliable evidence can be detected and filtered out prior to the trial stage. Before an individual suffers any of the serious inconveniences which are apt to ensue upon the return of a felony indictment (arrest, loss of job, humiliation, etc.), there should be a reliable determination made as to the probability of his guilt.
Because of the foregoing, I concur in this court's rejection of the Costello rule. Yet I have reservations as to whether the "evidence * * * that rationally established the facts" test which this court has now adopted will afford the innocent protection against unjust prosecutions. Whether or not this rule possesses viability will be determined in future adjudications.[4]
NOTES
[1]  AS 22.10.020(a) permits the state to appeal in a criminal case to test the sufficiency of an indictment or information. See also Supreme Ct.R. 6, and State v. Shelton, 368 P.2d 817, 819-820 (Alaska 1962).
[2]  368 P.2d 817 (Alaska 1962).
[3]  Alaska Const. art. I, § 8 provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury * * *.
[4]  350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
[5]  Id., at 359, 76 S.Ct. 406, 100 L.Ed. at 400.
[6]  Id., at 362-363, 76 S.Ct. at 408, 100 L.Ed. at 401-403.
[7]  State v. Shelton, 368 P.2d 817, 818-819 (Alaska 1962).
[8]  423 P.2d 686 (Alaska 1967), cert. denied, Merrill v. Alaska, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967).
[9]  Id., at 695 n. 35.
[10]  Note 2 supra.
[11]  United States v. Costello, 221 F.2d 668, 677 (2d Cir.1955).
[12]  Crim.R. 6(k) provides in part:

The grand jury ought to find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction by the trier of the offense.
[13]  AS 12.40.050 provides:

The grand jury may indict or present a person for a crime upon sufficient evidence, whether that person has been held to answer for the crime or not.
[14]  Meyst v. East Fifth Ave. Service, Inc., 401 P.2d 430, 437 (Alaska 1965).
[15]  Barlow v. Verrill, 88 N.H. 25, 183 A. 857, 858-859, 104 A.L.R. 1126, 1128-1129 (1936); Annot., 79 A.L.R.2d 890, 896-97, 921 (1961).
[16]  Barlow v. Verrill, supra note 15.
[17]  Model Code of Evidence, at 223-24 (1942).
[18]  United States v. Costello, 221 F.2d 668, 678 (2d Cir.1955).
[19]  Crim.R. 6(k), supra note 12.
[20]  In the Alaska Grand Jury Handbook, prepared and distributed by this court, the following is said at page 9:

You will note from the above that the defendant named in the criminal charge has not been heard as a witness, nor have any witnesses for him probably been called. This is because, as stated above, the Grand Jury does not try the merits of the case, but only the sufficiency of the evidence supporting the charge. However, the Grand Jury has the right to offer the defendant the opportunity to appear before it. This is not usually done and should not be done unless the Grand Jury really feels that it is desirable.
[1]  368 P.2d 817, 818-819 (Alaska 1962).
[2]  350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
[3]  It appears that there are numerous state court decisions since Costello which have followed the rationale of that case. See People v. McCrackin, 61 Ill. App.2d 457, 209 N.E.2d 673, 674 (1965); People v. Jones, 19 Ill.2d 37, 166 N.E.2d 1, 3 (1960); King v. State, 236 Ind. 268, 139 N.E.2d 547, 551 (1957); State v. Squires, 265 N.C. 388, 144 S.E.2d 49, 50 (1965); Wickline v. Alvis, 103 Ohio App. 1, 144 N.E.2d 207 (1957); Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 902-904 (1964).
[4]  There are also procedural ramifications to the rule announced today. In Merrill v. State, 423 P.2d 686, 695-696 (Alaska), cert. denied, Merrill v. Alaska, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967), we held that disclosure of grand jury minutes under Crim.R. 6(h) is a matter committed to the discretion of the trial judge. We further held, relying upon Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, 1326-1327 (1950), that a movant must demonstrate the existence of a particularized need requiring the disclosure of the grand jury's minutes.

It might well be that both Crim.R. 6(h) and our holding in Merrill will have to be modified to effectuate the evidentiary rule articulated in today's opinion. It will also be mandatory that a record be kept of all proceedings before any grand jury.


399 F.Supp. 1322 (1975)
Judith A. HELTON, Guardian of the person and Estate of Ernest J. McKimm, an incompetent, and Judith A. Helton, Individually, Plaintiff,
v.
RESERVE LIFE INSURANCE CO., a corporation, Defendant.
No. 75-17-GF.
United States District Court, D. Montana, Great Falls Division.
September 15, 1975.
Hoyt & Bottomly, Great Falls, Mont., for plaintiff.
Cure, Borer & Lynch, Great Falls, Mont., for defendant.

OPINION AND ORDER
RUSSELL E. SMITH, Chief Judge.
The complaint in two counts seeks damages on account of defendant's refusal to pay benefits alleged to be due under a disability policy. The first count seeks actual and punitive damages for failure to pay a hospital bill. A motion to strike is directed to the claim for punitive damages. In Montana such damages may be awarded where the breach of the insurance contract is likewise a violation of the insurance code. State ex rel. Larson v. District Court, 149 Mont. 131, 423 P.2d 598 (1967). R.C.M.1947 § 40-4011 requires that policies contain a provision providing for immediate payment of disability claims. This provision is applicable to defendant under R.C.M.1947 § 40-2609.
The motion to strike is denied.
In second count Judith A. Helton, daughter of the insured and guardian of his estate, seeks to recover for emotional distress to her as an individual caused by defendant's conduct. A motion to dismiss is directed to that count. The complaint (taken to be true) characterizes the defendant's conduct as *1323 deliberate, oppressive, fraudulent, and malicious, and describes it as a "run-around." In response to the guardian's requests for payment, the defendant made requests for information, and then, after the information had been furnished, repeated the requests, and finally, after everything it had demanded had been furnished several times, lapsed into a long silence. If what the complaint says is true, the defendant's conduct was bad, but even so, it amounts to no more than a deliberate stalling and an ultimate failure to pay. The defendant's communications made no threats or accusations; they contained no harsh or obscene language. The stalling and failure to pay worried Judith A. Helton.
The question is whether under these facts Judith A. Helton can recover under Montana law. The answer is "no." In Cashin v. Northern Pacific Ry., 96 Mont. 92, 28 P.2d 862 (1934), Montana broke away from the rule that there could be no cause of action for fright or mental distress unaccompanied by some physical injury. Cashin was followed in Kelly v. Lowney & Williams, Inc., 113 Mont. 385, 126 P.2d 486 (1942). In both of these cases the plaintiffs were subjected to a personal fear of bodily injury arising out of physical violence occurring in their presence. The Montana Supreme Court has not yet considered the liability for emotional distress caused by nonviolent conduct and unaccompanied by any fear for personal safety.
Whatever law may be ultimately adopted by the Montana courts,[1] no current authority would support a recovery here. It may be that when a debtor refuses to pay a just debt he acts unreasonably, and it may be that the creditor in such event will suffer some emotional stress, and it may be that emotional stress always results in some bodily harm, and thus that in some way the failure to pay a just debt falls within some extended scope of the words used in Restatement (Second) of Torts § 312:
Emotional Distress Intended
If the actor intentionally and unreasonably subjects another to emotional distress which he should recognize as likely to result in illness or other bodily harm, he is subject to liability to the other for an illness or other bodily harm of which the distress is a legal cause,
(a) although the actor has no intention of inflicting such harm, and
(b) irrespective of whether the act is directed against the other or a third person.
The comments to the section, however, clearly indicate that a refusal to pay a debt is not the stuff out of which liability under it is fashioned. The comments to Section 312 speak of such things as an actor who "screams threats and violent abuse at a person whom he knows to be at death's door with a weak heart." The section is illustrated by a case in which an actor intentionally shoots a dog in close proximity to a child at a time when he knows the child's mother, who is watching, is pregnant and that his act is certain to startle her. In the comments to Section 312 it is stated that the section does not give protection to mental and emotional tranquility in itself. Prosser speaks of liability for causing emotional distress in terms of "special situations of extreme misconduct." W. Prosser, Law of Torts, § 11 (3d ed. 1964). The meaning of "extreme misconduct" is filled out by the illustrations used at 48-49:
So far as it is possible to generalize from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Such extreme outrage has been found, as in the leading Wilkinson *1324 case, in decoying a woman suspected of insanity to a hospital by a concocted tale of an injured husband and child; in spreading the false rumor that the plaintiff's son had hanged himself; in bringing a mob to the plaintiff's door at night with a threat to lynch him unless he left town; and in wrapping up a very gory dead rat instead of a loaf of bread, for a sensitive soul to open.
           (Footnotes omitted.)
Plaintiff relies on Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78, 47 ALR3d 286 (1970), but in that case defendant not only refused to pay but falsely accused plaintiff of misrepresentation and threatened retaliatory measures if the plaintiff did not compromise the claim. Somewhat similar is the case of National Life & Accident Ins. Co. v. Anderson, 187 Okla. 180, 102 P.2d 141 (1940). Nothing of that sort appears here.
The motion to dismiss the second count is granted.
NOTES
[1]  See Wade v. Great American Ins. Co., 255 F.Supp. 735 (D.Mont.1966).


849 F.Supp. 462 (1994)
Sandra Jean BOGGS
v.
Thomas F. BOGGS, et al.
Civ. A. No. 92-4174.
United States District Court, E.D. Louisiana.
March 9, 1994.
*463 James F. Willeford, New Orleans, LA, for Sandra Jean Boggs.
Jimmy N. Dimos, Monroe, LA, for Thomas F. Boggs.
Guy L. Deano, Jr., Mandeville, LA, for Harry P. Boggs and David B. Boggs.
McNAMARA, District Judge.
This is a declaratory judgment action wherein Plaintiff seeks to have this court declare that ERISA, 29 U.S.C. § 1001 et seq., preempts Louisiana's community property laws. After Plaintiff filed her Motion for Summary Judgment, the parties informed the court that there were no genuine issues of material fact and that this entire matter should be tried on stipulated facts. Having carefully reviewed the stipulated facts, the arguments of counsel and the applicable law, the court renders the following decision.

I. FACTS

Isaac Boggs, Jr. was married to his first wife, Dorothy McDonald Boggs, from the date of his employment with South Central Bell on June 18, 1949 until her death on August 14, 1979. During their marriage, Isaac and Dorothy Boggs had three sons; Thomas Frank Boggs, Harry Maurice Boggs, and David Bruce Boggs, who are the Defendants in this case. Pursuant to Dorothy Boggs' will, Isaac Boggs, Jr. received one-third of her estate and the lifetime usufruct of the remaining two-thirds of the estate, whose naked ownership was inherited by Defendants. The Sworn Descriptive List of assets filed in Dorothy Boggs' succession included the Bell System Savings Plan for Salaried Employees with a value of $42,388.57 at the time of her death, with her one-half interest valued at $21,194.29.
Isaac Boggs, Jr. married Plaintiff, Sandra Boggs, on April 5, 1980, and no children were born of this marriage. Isaac Boggs, Jr. retired from South Central Bell after 36 years of service on September 1, 1985. Upon his retirement, Isaac Boggs, Jr. received $151,628.94 which was the distribution from the BellSouth Management Savings Plan (formerly called BellSouth Systems Savings Plan for Salaried Employees). The entirety of these funds were "rolled over" into an IRA account at Delaware Charter Guarantee Trust Company. Isaac Boggs, Jr. made no withdrawals from the IRA account prior to his death on February 16, 1989, at which time the IRA account was valued at $180,778.05. In addition to the distribution from the Savings Plan, Isaac Boggs, Jr. received monthly retirement payments from September 1, 1985, through the date of his death on February 16, 1989, in the amount of $1,777.67 *464 per month. Thereafter, the survivor's life-time annuity pension has been paid to Plaintiff, and she was the named beneficiary of the IRA plan.
Under the terms of the BellSouth ESOP, Isaac Boggs, Jr. acquired 96 shares of AT & T stock which were distributed to him when he retired. In addition, the Plan included life insurance policies payable to Plaintiff as the named beneficiary. The BellSouth Management Savings Plan, the ESOP Plan, and all retirement benefits and employee benefit plans of South Central Bell are qualified plans subject to the provisions of The Employee Retirement Income Security Act of 1974 and the Retirement Equity Act of 1984, 29 U.S.C. § 1001, et seq. The IRA account at Delaware is a qualified Individual Retirement Account under IRC Section 401, et seq.
Two of the Defendants herein, Harry and David Boggs, have filed an action in state court claiming that they are entitled to the following:
1. An accounting of the usufruct enjoyed by Isaac Boggs, Jr. over that portion of the retirement payments attributable to Dorothy Boggs' community interest in the retirement plan and the payment of a percentage of the pension plan payments from September 1, 1985 through February 16, 1989;
2. A percentage of the survivors' annuity payable to Sandra Boggs from February of 1989 until her death;
3. A percentage of the IRA account which was created in the "roll over" of Isaac Boggs, Jr's distribution of the BellSouth Management Savings Plan, based on Dorothy Boggs' community interest in those funds; and
4. A portion of the ESOP shares of AT & T stock.
On December 17, 1992, Plaintiff filed her Complaint for Declaratory Judgment seeking a ruling that ERISA preempts the application of Louisiana's community property and succession laws to the assets of, or the benefits payable under, the plan and/or the IRA.

II. ANALYSIS

Louisiana is in the minority of states that provide for a community property regime among spouses where "[e]ach spouse owns a present undivided one-half interest in the community property." La.Civ.Code Ann. art. 2336 (West 1994). Under Louisiana's community property regime, a non-employee spouse is granted a right to claim pension and survivorship benefits even if such do not become payable until after the community is dissolved as long as both the pension and the community coexist for some period of time. T.L. James & Co. v. Montgomery, 332 So.2d 834 (La.1975) and Sims v. Sims, 358 So.2d 919 (La.1978). The Court's reasoning in these two cases was that the future pension right, which was being built up during the existence of the community, constituted "an incorporeal, movable right" and had to be so classified at the dissolution of the community. T.L. James & Co., 332 So.2d at 851. Under Louisiana law, therefore, Dorothy Boggs owned a substantial interest in the pension and retirement plans of Isaac Boggs, Jr. because she was married to him during thirty of the thirty-six years that he was employed with South Central Bell.
While Plaintiff does not refute that Louisiana's community property laws operate as described above, Plaintiff argues that ERISA preempts state community property law. Plaintiff's preemption argument relies upon a single provision of ERISA. Specifically, Plaintiff contends that section 514(a) of ERISA, 29 U.S.C. § 1144(a) (1976), explicitly preempts the state law at issue. Section 514(a) provides that ERISA "shall supersede any and all state laws insofar as they ... relate to any employee benefit plan...." After carefully considering the arguments of counsel and the applicable law, the court finds that ERISA does not preempt Louisiana's community property law.[1]
*465 While there is no question that the Supremacy Clause gives Congress the power to preempt state laws, both Congress and the courts have traditionally deferred to state property law because of the strong state interest in determining the nature of property rights. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979). The courts have, however, recognized that ERISA broadly preempts state law because Congress was primarily concerned with requiring all pension plans to operate under a uniform legal scheme and to eliminate the threat of conflicting state regulation. Note, Ablamis v. Roper: Preemption of the Nonemployee Spouse's Community Property Rights in ERISA Pension Plans, 49 Wash. & Lee L.Rev. 1085 (1992) (citing FMC Corp. v. Holliday, 498 U.S. 52, 58-59, 111 S.Ct. 403, 408, 112 L.Ed.2d 356 (1990)). Despite its broad preemption provision, ERISA does not preempt state laws such as Louisiana's community property laws which were not specifically designed to affect ERISA benefit plans. While such state laws may indirectly implicate an ERISA pension plan, they do not "relate to" an employee benefit plan as required to trigger the preemption provisions of section 514(a). Mackey v. Lanier Collection Agency & Services, Inc., 486 U.S. 825, 829, 108 S.Ct. 2182, 2185, 100 L.Ed.2d 836 (1988). Instead, ERISA will preempt Louisiana's community property law if and only if: (1) Congress has positively expressed its intent to preempt the state law and (2) the state law does major damage to a clear and substantial federal interest. Hisquierdo, 439 U.S. at 581, 99 S.Ct. at 808.
Enforcement of Louisiana's community property law simply would not cause "major damage" to any "clear and substantial federal interest" served by ERISA. In enacting ERISA, Congress declared that its policy was the protection of employees vis a vis their employers. 29 U.S.C. § 1001. Not surprisingly, ERISA regulates funding, disclosure, and the vesting of rights in the plans. The Act does not display any particular interest in preserving maximum benefits to any particular beneficiary.
Although the Act provides a method for the participant to designate a beneficiary, this procedure appears to be another provision for the protection of the employee in his relations with his employer and not a federal decision to upset the balance of spousal rights protected by state law.
Employees Savings Plan of Mobil Oil Corp. v. Geer, 535 F.Supp. 1052, 1055 (S.D.N.Y. 1982).
In two cases involving federal pensions, the Supreme Court found that the state domestic relations laws so conflicted with federal objectives that the state laws were preempted. For example, the Court held that state courts could not allocate military retirement pay pursuant to state community property laws upon dissolution of a marriage because such state laws conflicted with the federal military retirement scheme. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1970), the Court held that pensions under the Railroad Retirement Act of 1974 were not community property subject to division upon dissolution of the marriage because such division would conflict with an allocation of a federal benefit intended by Congress.
These two cases, in which the Court found the requisite damage to federal interests to preempt state property law, differ substantially from the case at hand. In McCarty, the Court found that the federal statute providing retirement pay to military officers *466 served major federal goals by providing for the needs of retired officers and by facilitating the management of military personnel by encouraging enlistment, reenlistment, and retirement at an appropriate age. Similarly, in Hisquierdo, the Court noted that the Railroad Retirement Act of 1974 created a system of federally administered benefits similar to Social Security. Under this Act, Congress "carefully targeted" the benefits to be provided, consciously "fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire," and specifically limited the extent to which a divorced spouse may reach these assets. Hisquierdo, 439 U.S. at 584-85, 99 S.Ct. at 810. Moreover, the present controversy involves privately funded pensions whereas both McCarty and Hisquierdo actually involved federally funded pensions.
Importantly, the Supreme Court suggested that the Railroad Retirement Act, found to preempt community property law, should be distinguished from ERISA:
In [the Railroad Retirement Act], Congress has granted a separate spouse's benefit, and has terminated that benefit upon absolute divorce. Different considerations might well apply where Congress has remained silent on the subject of benefits for spouses, particularly when the pension program is a private one which federal law merely regulates. See Employee Retirement Income Security Act of 1974, 88 Stat. 829, 29 U.S.C. § 1001 et seq. Our holding intimates no view concerning the application of community property principles to benefits payable under programs that possess these distinctive characteristics.
Id. 439 U.S. at 591, n. 24, 99 S.Ct. at 813, n. 24. ERISA merely imposes standards on private administrators of private benefit plans. It does not evince any special concern for preserving all of the benefits of the plans for the participants. Application of Louisiana's community property law in this case will not do major damage to any federal interest, and thus, the Supremacy Clause does not require that the state law be overridden.
The result reached herein is also supported by the Supreme Court's dismissal, for want of a substantial federal question, of the appeal in Carpenters Pension Trust Fund v. Campa, 89 Cal.App.3d 113, 152 Cal.Rptr. 362 (1979), appeal dismissed, 444 U.S. 1028, 100 S.Ct. 696, 62 L.Ed.2d 664 (1980). The effect of a dismissal for want of a substantial federal question is to leave the decision of the lower court undisturbed and "without doubt [to] reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). See also 16 C. Wright, A. Miller, E. Cooper & E. Glessman, Federal Practice and Procedure § 4014 at 638-39 (1977).
In Campa, the state court held that ERISA did not preclude the states from dividing pension rights in marital dissolution proceedings. Significantly, the first question presented to the Supreme Court in Campa was:
1. Do the provisions of Title I of the Employment Retirement Income Security Act, commonly known as ERISA, supersede the provisions of the California community property law and implementing statutes and court rules insofar as they relate to an employee benefit plan covered by that Act?
Brief of Appellant at 7. See also Savings and Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038, 1043 (7th Cir. 1983). Under the doctrine established in Mandel v. Bradley, therefore, the Supreme Court's dismissal of Campa for want of a substantial federal question serves as a decision on the merits that the preemption section of ERISA does not override California's community property law. Likewise, this court ascertains no reason why ERISA would preempt Louisiana's community property law.
This court notes two additional reasons why ERISA should not preempt state community property law. First, Congress enacted the Retirement Equity Act of 1984 as an amendment to ERISA, in part, as a response to the judicial uncertainty of whether ERISA's bar to the transfer of plan benefits to third parties applied to the apportionment of benefits to a nonemployee spouse pursuant to a divorce settlement. As a result of this amendment, ERISA now specifically grants a divorced nonemployee spouse the right to receive and dispose of benefits awarded in a *467 divorce proceeding but does not explicitly recognize state-created property rights in a married nonemployee spouse. Thus, finding that ERISA preempts state community property law would provide a strong incentive for a nonemployee spouse in a community property state to obtain a divorce before death as the only method of retaining transmissible property rights in the pension. Note, Ablamis v. Roper: Preemption of the Nonemployee Spouse's Community Property Rights in ERISA Pension Plans, 49 Wash. 8 Lee L.Rev. 1085 (1992). Secondly, because Louisiana law provided Dorothy Boggs with an undivided interest in the retirement plans at the time that the fund was established, which was well before ERISA was passed in 1974, allowing ERISA to preempt her state created property right would violate the Fifth Amendment's prohibition against the government's taking private property without just compensation. Based upon the foregoing reasons;
IT IS ORDERED that Plaintiff's Motion for Summary Judgment, which seeks a declaration that ERISA preempts Louisiana's community property laws, be and is hereby DENIED.
IT IS FURTHER ORDERED that Judgment be and is hereby rendered in favor of Defendants, DECLARING that ERISA does not preempt Louisiana's community property laws.
NOTES
[1]  Although Plaintiff did not argue that section 206(d)(1) of ERISA, 29 U.S.C. § 1056(d)(1) (1976), preempts Louisiana's community property law, this court, for purposes of completeness, will consider whether this section supersedes the state law at issue herein. Section 206(d)(1) provides that "[e]ach pension shall provide that benefits provided under the plan may not be assigned or alienated." This court finds, however, that there are two reasons why ERISA's antialienation provision does not operate to preempt Louisiana's community property law.

First, Congress proscribed alienation and assignment of pension benefits to protect an employee from his own financial improvidence in dealing with third parties, and Congress did not intend to alter traditional familial and support obligations. Savings and Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038, 1041 (7th Cir.1983) (citing American Telephone and Telegraph Co. v. Merry, 592 F.2d 118, 124 (2nd Cir.1979)). Secondly, "alienate" means "to convey or transfer to another (as title, property, or right): part voluntarily with ownership of." Webster's Third New International Dictionary (1981). By virtue of Louisiana's community property law, Dorothy Boggs' rights in the benefits were acquired by her directly at the outset and did not represent a transfer to her of rights which had previously accrued to Isaac Boggs, Jr. Thus, operation of community property law to the present pension benefits does not constitute an assignment or alienation prohibited by section 206(d)(1).


1 So.3d 1200 (2009)
Alejandro ROSADO, Appellant,
v.
DAIMLERCHRYSLER FINANCIAL SERVICES TRUST, a/k/a DCFS Trust; LaMondue Law Firm, PCL; Carl C. LaMondue; and Terrell A. Parham, Appellees.
No. 2D07-3690.
District Court of Appeal of Florida, Second District.
February 6, 2009.
*1201 Matthew E. Kaplan of Kaplan and Freedman, P.A., Miami; and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
Michael B. Buckley, Lauren S. Curtis, and Rebecca O'Dell Townsend of Buckley & Fudge, P.A., St. Petersburg, for Appellee DCFS Trust.
No appearance for other Appellees.
PER CURIAM.
Alejandro Rosado appeals a partial final summary judgment dismissing his claim against DaimlerChrysler Financial Services Trust (DaimlerChrysler). Mr. Rosado sued DaimlerChrysler for injuries he sustained in an automobile accident because DaimlerChrysler was the owner and lessor of the car driven by the person allegedly at fault in this accident. Mr. Rosado claimed that DaimlerChrysler was liable because it had failed to ensure that the vehicle was covered by insurance to the limits of liability described in section *1202 324.021(9)(b)(1), Florida Statutes (2002), at the time of the accident. The trial court entered summary judgment in favor of DaimlerChrysler on the theory that Florida law had been preempted by 49 U.S.C. § 30106, commonly referred to as the Graves Amendment, which shields long-term lessors and rental car companies from vicarious liability imposed under state law under some circumstances.
This appears to be the first case in which a court has addressed the application of the Graves Amendment to a long-term automobile lease under section 324.021(9)(b)(1). The Amendment's application, however, has been addressed at length in reference to rental cars under section 324.021(9)(b)(2). See Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 (11th Cir.2008); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980 (M.D.Fla.2007); Karling v. Budget Rent A Car Sys., Inc., 33 Fla. L. Weekly D2777, 2 So.3d 354, 2008 WL 5100530 (Fla. 5th DCA Dec. 5, 2008); Tocha v. Richardson, 995 So.2d 1100 (Fla. 4th DCA 2008); Vargas v. Enter. Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008); Kumarsingh v. PV Holding Corp., 983 So.2d 599 (Fla. 3d DCA 2008). Much of that discussion is relevant to this case, and it convinces us that the trial court properly entered summary judgment in favor of DaimlerChrysler.

I. THE FACTS
On June 29, 2003, Terrell Parham drove a car across the median on U.S. Highway 27 near Haines City and collided with a car driven by Alejandro Rosado. Mr. Rosado sustained serious injuries.
At the time of the accident, Mr. Parham was a Polk County resident who had recently graduated from Virginia Polytechnic Institute and State University (Virginia Tech), where he played football. The car that Mr. Parham was operating was a Mercedes Benz C230 that was owned by DaimlerChrysler Financial Services Trust. It had been leased to the LaMondue Law Firm in Virginia on January 15, 2003, for a period of four years. The connection between the LaMondue Law Firm and Mr. Parham is not disclosed in our record except to the extent that Mr. Parham is not an employee of the law firm. The law firm had apparently given the car to Mr. Parham to use, and there is no claim that he was not a permissive user and lawful bailee of this car at the time of the accident. The testimony in the record indicates that the car had been in Florida for only a short time. The car was registered in Virginia, and we assume for purposes of this opinion that it was subject to the requirements, if any, of Virginia law concerning compulsory liability insurance and financial responsibility.
The lease between DaimlerChrysler and the LaMondue Law Firm required the law firm, as lessee, to insure the car for not less than $100,000 per person and $300,000 per accident in bodily injury coverage and $50,000 in property coverage. At the end of the lease document, the lessor verified that it had determined that insurance coverage was provided by United Services Automobile Association.[1] The record indicates that immediately before this accident, insurance in this amount was actually provided by Progressive Insurance Company, but that insurance policy lapsed for nonpayment the day before the accident.
Mr. Rosado filed his lawsuit in Polk County against the LaMondue Law Firm, Mr. LaMondue, Mr. Parham, and DaimlerChrysler. The claim against DaimlerChrysler *1203 alleged that it was vicariously liable for Mr. Parham's negligent operation of the car under Florida's dangerous instrumentality doctrine because it had failed to comply with the insurance requirements of section 324.021(9)(b)(1).
DaimlerChrysler moved for summary judgment in August 2006. Although it argued in part that its liability should be based on Virginia tort law, it also argued that Florida law, if it applied, was preempted by the Graves Amendment, which we describe in greater detail below.[2] After Judge William Terrell Hodges issued a decision interpreting the Graves Amendment to preempt section 341.021(9)(b)(2) as applied to a Florida short-term rental agreement in Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821 (M.D.Fla.2007), aff'd, 540 F.3d 1242 (11th Cir.2008), the trial court in this case granted summary judgment in favor of DaimlerChrysler, relying extensively on the Garcia decision. Mr. Rosado appealed the summary judgment to this court. Recently, while this appeal was pending, the Eleventh Circuit affirmed Judge Hodges' decision in Garcia. Garcia, 540 F.3d at 1244-45.

II. THE GRAVES AMENDMENT
The Graves Amendment was enacted as a federal statute effective August 10, 2005. See Garcia, 510 F.Supp.2d at 829. The Graves Amendment applies to any "action commenced on or after [its] date of enactment... without regard to whether the harm that is the subject of the action, or the conduct that caused the harm, occurred before such date...." 49 U.S.C. § 30106(c). It provides, in pertinent part:
Section 30106. Rented or leased motor vehicle safety and responsibility.
(a) In general.An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if
(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).
(b) Financial responsibility laws. Nothing in this section supersedes the law of any State or political subdivision thereof
(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or
(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.
(c) Applicability and effective date. Notwithstanding any other provision of law, this section shall apply with respect to any action commenced on or after the date of enactment of this section without regard to whether the harm that is the subject of the action, or the conduct that caused the harm, occurred before such date of enactment.
*1204 Mr. Rosado challenges the application of this preemptive statute on three fronts. First, he argues that the Graves Amendment is unconstitutional as a violation of the Commerce Clause. The Eleventh Circuit rejected that argument in Garcia. 540 F.3d at 1253. This issue has been raised and rejected in many other cases. See, e.g., Flagler v. Budget Rent A Car Sys., Inc., 538 F.Supp.2d 557, 559 (E.D.N.Y.2008) (holding the Graves Amendment to be constitutional under the second and third Lopez[3] categories); Berkan v. Penske Truck Leasing Canada, Inc., 535 F.Supp.2d 341, 345 (W.D.N.Y. 2008) (same); Jasman v. DTG Operations, Inc., 533 F.Supp.2d 753, 757 (W.D.Mich. 2008) (holding the Graves Amendment to be constitutional under all three Lopez categories); Garcia, 510 F.Supp.2d at 835 (same); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980, 985 (M.D.Fla.2007) . (holding the Graves Amendment to be constitutional under the second Lopez category). We likewise reject this argument, relying upon the explanations in Garcia and the other existing precedents.
Second, Mr. Rosado maintains that the Graves Amendment does not apply to this case because both the accident and the filing of this lawsuit occurred before the enactment of the Graves Amendment, even though DaimlerChrysler was joined as a defendant after the enactment.[4] We decline to consider this issue because it was not argued in the trial court and is not the type of error that can be raised for the first time on appeal as a fundamental error. See N.L.E. v. Dep't of Children & Family Servs., 970 So.2d 486 (Fla. 2d DCA 2007) (holding that, absent fundamental error, petitioner could not present for first time on appeal issues not raised before the trial court).
Finally, Mr. Rosado argues that the Graves Amendment does not limit DaimlerChrysler's liability in this context because this federal statute contains two exceptions to the reach of its preemption. This is the issue that cannot be resolved without additional analysis.

III. THE GRAVES AMENDMENT PREEMPTS SUBSECTION 324.021(9)(b)(1)
Subsection 324.021(9)(b) is a definitional provision within chapter 324 of the Florida Statutes, which is entitled "Financial Responsibility." It states:
(9) OWNER; OWNER/LESSOR.
....
(b) Owner/lessor.Notwithstanding any other provision of the Florida Statutes or existing case law:
1. The lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage liability and bodily injury liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection *1205 therewith; further, this subparagraph shall be applicable so long as the insurance meeting these requirements is in effect. The insurance meeting such requirements may be obtained by the lessor or lessee, provided, if such insurance is obtained by the lessor, the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor's blanket policy.
2. The lessor, under an agreement to rent or lease a motor vehicle for a period of less than 1 year, shall be deemed the owner of the motor vehicle for the purpose of determining liability for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the lessee or the operator of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the lessor shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the lessor for economic damages shall be reduced by amounts actually recovered from the lessee, from the operator, and from any insurance or self-insurance covering the lessee or operator. Nothing in this subparagraph shall be construed to affect the liability of the lessor for its own negligence.
§ 324.021(9)(b).
Subsection (b)(2) applies to rental cars and essentially makes the rental car company, as owner, liable up to $800,000, depending upon the insurance coverage on the leased vehicle and the nature of the damages. In excellent discussions, Judge Hodges, in Garcia, 510 F.Supp.2d at 829-33, and Judge Gross, in Vargas, 993 So.2d at 618-21, have concluded that this definitional section does not "impos[e] financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle" and does not "impose liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law," as provided within the savings clause of 49 U.S.C. § 30106(b). Accordingly, both courts concluded that the exceptions to the Graves Amendment did not apply.
Subsection (b)(1) is similar in that it provides that the lease car company is not deemed the owner for financial responsibility or for vicarious liability so long as either the lessee has the designated policy of liability insurance in place or the lessor has a $1,000,000 blanket policy. Like subsection (b)(2), this subsection does not "impos[e] financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle" and does not "impose liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law." It merely gives the leasing company the option to have insurance in place to avoid liability in Florida under the dangerous instrumentality doctrine. Because the statute does not compel a lease car company to have certain "insurance standards," this statute does not impose liability for a "failure" to meet insurance standards that are only optional.
We recognize, as the dissent argues, that the uniqueness of Florida's dangerous instrumentality doctrine makes the application *1206 of the Graves Amendment more questionable in Florida. From a practical perspective, the dissent may accurately explain the purpose and function of section 324.021(9)(b)(1), but we conclude that the statute's plain language requires the ruling that we reach today. However, we certify to the supreme court the following question of great public importance:
DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(b)(1), FLORIDA STATUTES (2002)?
Affirmed.
VILLANTI and LAROSE, JJ., Concur.
ALTENBERND, J., Concurs in part and dissents in part with opinion.
ALTENBERND, Judge, Concurring in part and dissenting in part.
I agree with the majority that the Graves Amendment, 49 U.S.C. § 30106, is not unconstitutional and that section 324.021(9)(b)(1) is not excepted from this federal preemption statute by virtue of the exception stated in subsection (b)(1) of the Graves Amendment. On the other hand, I conclude that section 324.021(9)(b)(1), when examined in conjunction with Florida's unique dangerous instrumentality doctrine, is effectively a statute imposing liability for failure to meet liability insurance requirements. It appears to me to be the type of statute that Congress intended to allow states to enact, as provided within subsection (b)(2) of the Graves Amendment. It fulfills both the purposes and functions of the type of statute that Congress would allow a state to enact under the common law of the other forty-nine states.
There does not appear to be any serious dispute that a state could enact a statute that provided:
Lease car companies doing business in this state shall ensure that either the lessee or the lease car company provides a policy of liability insurance of not less than $500,000 combined property damage liability and bodily injury liability for each lease car operated in this state. Failure to provide this insurance shall render the lease car company vicariously liable for all damages caused by the negligence of the operator of the lease car.
Such a statute would squarely fit within the exception of subsection (b)(2) of the Graves Amendment. Under the common law of apparently every state except Florida, such a statute would be necessary to make the owner vicariously liable for the negligent acts of the operator because the common law did not impose such liability. See, e.g., Morris v. Snappy Car Rental, Inc., 84 N.Y.2d 21, 614 N.Y.S.2d 362, 637 N.E.2d 253, 254-55 (1994) (explaining that New York's legislature enacted Vehicle and Traffic Laws section 388 to change the common law rule and to make a vehicle's owner vicariously liable for the negligence of a person operating the car with the permission, express or implied, of the owner); see also 8 Am.Jur.2d Automobiles and Highway Traffic § 403 (2007).
If one examines the history of the dangerous instrumentality doctrine and the efforts of the rental and car leasing companies to obtain a special exemption from that doctrine, it becomes more clear that section 324.021(9)(b)(1) is the equivalent of the above-quoted hypothetical statute.

I. THE DEVELOPMENT OF THE DANGEROUS INSTRUMENTALITY DOCTRINE IN FLORIDA PRIOR TO 1989
Judge Hodges, in his opinion in Garcia, provided an excellent, brief description of Florida's development of the dangerous *1207 instrumentality doctrine. I repeat that description here.
Florida's vicarious liability doctrine as it pertains to lessors of motor vehicles is largely a creation of common law, and is otherwise known as the "dangerous instrumentality doctrine." The dangerous instrumentality concept was first applied to motor vehicles by the Florida Supreme Court in 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine "imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another." Estate of Villanueva ex rel. Villanueva v. Youngblood, 927 So.2d 955 (Fla.Dist.Ct.App.2006); see also Southern Cotton, 86 So. at 637. The dangerous instrumentality doctrine was judicially adopted based on public policy concerns:
The dangerous instrumentality doctrine seeks to provide greater financial responsibility to pay for the carnage on our roads. It is premised upon the theory that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation. If Florida's traffic problems were sufficient to prompt its adoption in 1920, there is all the more reason for its application to today's high-speed travel upon crowded highways. The dangerous instrumentality doctrine is unique to Florida and has been applied with very few exceptions.

Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000) (quoting Kraemer v. Gen. Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990)).
The Florida Supreme Court extended the dangerous instrumentality doctrine to lessors, thereby making them vicariously liable for the lessee's negligent operation of the motor vehicle, in 1959. Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959).
Garcia, 510 F.Supp.2d at 827. There is, incidentally, no question in my mind that, without the legislative enactment in section 324.021(9)(b), the Florida law related to the dangerous instrumentality doctrine would be preempted by the Graves Amendment.

II. THE DEVELOPMENT OF THE FINANCIAL RESPONSIBILITY STATUTES IN FLORIDA PRIOR TO 1989
Judge Gross, in Vargas, has done an excellent job describing the history and the nature of Florida's Financial Responsibility Act, chapter 324, Florida Statutes. Vargas, 993 So.2d at 618-21. I am inclined to believe, however, that financial responsibility laws are not the true focus of the issue presented by this case. Unlike many states where financial responsibility laws were enacted in conjunction with laws establishing some vicarious liability of motor vehicle owners, that vicarious liability had existed in Florida as a result of the dangerous instrumentality doctrine for more than a generation when the Florida Legislature first addressed the idea of financial responsibility. These laws do not create any compulsory insurance requirements for owners of typical cars whose drivers have been responsible. The most significant sanction imposed under these statutes is not the liability of the owner (which already existed in Florida under the dangerous instrumentality doctrine), but rather the loss of a driver's license or registration for someone who has not been financially responsible in the past. See § 324.051, Fla. Stat. (2008).
*1208 The significance of Florida's financial responsibility statutes was altered and reduced with the creation of no-fault automobile insurance. The definition of motor vehicle was amended in 1977 to provide that an automobile insured with no-fault insurance was not included within the definition of motor vehicle for purposes of financial responsibility in many instances. See Ch. 77-468, § 6, at 2061, Laws of Fla.
While financial responsibility statutes in Florida may have been a regulatory annoyance for rental and lease car companies, the real complaint of these companies was with Florida's dangerous instrumentality doctrine because it could make these large corporations subject to unlimited judgments for the damage and injury caused by their cars in Florida.

III. THE LEGISLATIVE RESPONSE IN 1986 IN FLORIDA ADDRESSING THE LIABILITY OF LONG-TERM LESSORS
In 1986, the Florida Legislature created section 324.021(9)(b) to exempt lease car companies from the dangerous instrumentality doctrine so long as the lessee maintained certain levels of liability insurance. Ch. 86-229, § 3, Laws of Fla. This bill did not deal with insurance or financial responsibility in general; it amended statutes affecting lessors of motor vehicles. This version of the statute provided no relief to rental car companies as opposed to long-term lessors. It also did not provide the option of a blanket liability policy. That language was added later by chapter 88-370, Laws of Florida, as a response to cases in which the statute was read literally to require a policy provided by the lessee in order for the lessor to escape the dangerous instrumentality doctrine. See Ady v. Am. Honda Fin. Corp., 675 So.2d 577 (Fla.1996).
This statute was odd in 1986, and it remains odd today in at least two respects. First, it purports to be a definition of "owner/lessor" for a statutory chapter dealing with financial responsibility, when in reality it is far more than a definition. Second, although one might expect that it was only a definition for purposes of Florida's statutory financial responsibility requirements because it is in chapter 324 and not in chapter 768, it actually establishes a major limitation on a common law negligence cause of action for the benefit of a narrow class of defendantsthose businesses who lease motor vehicles.[5]
After the enactment of this statute, a business that leased automobiles in Florida and complied with these statutory provisions was still the owner of the vehicles for many purposes, but it was not "deemed" the owner for either financial responsibility or for liability under the dangerous instrumentality doctrine. Examined from a practical or functional perspective, the legal owner of the leased or rented motor vehicle had no monetary exposure for risks associated with the use or operation of the motor vehicle so long as the prescribed insurance was in place. The "penalty" for failure to maintain the insurance was a return to unlimited liability under the dangerous instrumentality doctrine. See Ady, 675 So.2d at 581 (holding lessor was not entitled to the statutory exemption from the dangerous instrumentality doctrine where lessee failed to satisfy the requirement of section 324.021(9)(b)).
I admit that this statute in 1986 and today does not compel leasing companies to have minimum limits of insurance coverage. *1209 I am not convinced it is necessary for the statute to compel coverage to fit within the second exception to the Graves Amendment. Subsection (b)(2) exempts state laws "imposing liability on business entities engaged in the trade or business of... leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law." In Florida, the liability was imposed by common law and the statute provides an insurance option to avoid that liability. If a leasing company fails to meet the liability insurance requirements in section 324.021(9)(b)(1), then Florida common law as explained in Ady and earlier cases will impose liability on that business. In combination, the common law and section 324.021(9)(b)(1) fits squarely within exception (b)(2) of the Graves Amendment.
I believe that the plain language of exception (b)(2) allows Florida to continue to impose liability on lease car companies that fail to provide the insurance designated in section 324.02(9)(b)(1). If I were to engage in statutory interpretation of the Graves Amendment, the case law encourages a narrow reading of federal preemptive statutes in fields traditionally occupied by the states. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Courts are encouraged to seek out the purpose of such a statute. Id. at 485-86, 116 S.Ct. 2240. I would assume that Congress intends express exceptions to preemptive statutes to be fully enforced. The clear purpose of the Graves Amendment is to prevent a multitude of different liability rules among the states for lease and rental car companies that operate throughout the country while allowing the states to impose liability on lease car companies that do not provide the insurance designated by state law. It seems to me that section 324.021(9)(b)(1), in conjunction with Florida's dangerous instrumentality doctrine, accomplishes precisely that purpose in Florida, and I see no basis to rule that Congress has preempted this sound state law.
NOTES
[1]  Although not relevant for purposes of this decision, the lease was initially executed by Tysinger Motor Co., Inc., in Hampton, Virginia, and later assigned to DaimlerChrysler.
[2]  Under Florida's "significant relationships" test, we apply the tort law of the state that has the most significant relationships to the cause of action, which in this case is Florida. See Bishop v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980).
[3]  United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
[4]  This issue too has been considered in other cases. See, e.g., Merchants Ins. Group v. Mitsubishi Motor Credit Ass'n, No. CV-03-6017, 2008 WL 203195 (E.D.N.Y. Jan. 23, 2008); see generally Beth Bates Holliday, Annotation, Validity, Construction, and Application of Graves Amendment (49 U.S.C.A. § 30106) Governing Rented or Leased Motor Vehicle Safety and Responsibility, 29 A.L.R. Fed.2d 223, § 11 (2008) (collecting cases).
[5]  In this case, for example, the LaMondue Law Firm is not protected by section 324.021(9)(b) and as lessee and bailee of the car presumably remains liable under the dangerous instrumentality doctrine.


572 P.2d 361 (1977)
31 Or.App. 1213
STATE of Oregon, Respondent,
v.
Elbert WRIGHT, Appellant.
Court of Appeals of Oregon.
Submitted on Record and Brief November 30, 1977.
Decided December 12, 1977.
*362 Gary D. Babcock, Public Defender, and Gary L. Hooper, Deputy Public Defender, Salem, filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, appeared for respondent.
Before SCHWAB, C.J., and TANZER and JOSEPH, JJ.
Submitted on Record and Appellant's Brief November 30, 1977.
PER CURIAM.
On February 10, 1976, defendant was sentenced to five years' imprisonment. Execution of sentence was suspended and defendant was placed on probation for a like period. On June 23, 1977, defendant's probation was revoked and defendant was sentenced to five years' imprisonment, the sentence to run consecutively to a sentence imposed subsequent to February 1976 on an unrelated conviction.
The state concedes that in light of State v. Stevens, 253 Or. 563, 456 P.2d 494 (1969), the circuit court was without authority to order that the sentence previously imposed upon defendant be executed consecutively to another sentence defendant had received between the imposition of the sentence in question here and the revocation of his probation. Had the order said that imposition of sentence rather than execution of sentence was stayed, the court would have retained the power to do what it did. As the state acknowledges, at the time the trial judge placed defendant on probation he unequivocally stated that he intended to suspend imposition of sentence. Nevertheless, the order (presumably prepared by the district attorney) which he subsequently filed imposed a five-year sentence and suspended only the execution thereof. Under State v. Swain/Goldsmith, 267 Or. 527, 530, 517 P.2d 684 (1974), it is the unambiguous written order which must control regardless of evidence of contrary judicial intention.
Remanded for resentencing.