dissenting:
I respectfully dissent. I would affirm the decision of the district court.
The sole issue in this case is whether Session Law 92-29, a Florida law specifying the manner by which owner/operators of for-hire passenger transportation vehicles may prove financial responsibility is preempted by the Federal Liability Risk Retention Act, 15 U.S.C.A. §§ 3901-3906.
*1020All but one of the plaintiffs are individual for-hire passenger transportation companies that are members of Paratransit Risk Retention Group of Maryland, Inc. (“Paratransit”), which is itself a plaintiff. The district court granted partial summary judgment in favor of plaintiffs against the defendant, Fred 0. Dickinson, III, as Executive Director of the State of Florida Department of Highway Safety & Motor Vehicles (the “State”), and permanently enjoined enforcement of the state law, holding that it violated federal law. The remaining claims were resolved by stipulation of the parties.
In my judgment, the district court’s opinion provides a thorough and correct analysis of all but one of the issues raised on appeal. A copy of that opinion is attached to this dissent as an Appendix. I address one issue emphasized by the State on appeal.
On appeal, the State contends that there is no conflict between the federal act and Session Law 92-29 because the state law regulates in an area that risk retention groups do not cover. While the state law’s focus is to regulate the initial layer of protection provided by for-hire passenger transportation companies, risk retention groups only write policies covering losses in excess of that initial layer. Paratransit has never written insurance within this mandatory first layer of coverage, and Session Law 92-29 has no effect on the plaintiffs’ ability to continue using Paratransit or any other risk retention group for their excess coverage. Basically, the State characterizes the function of the risk retention group as no more than an excess carrier.
Such an argument focuses on only a narrow aspect of how risk retention groups function. A risk retention group is a corporation or other limited liability entity organized for the primary purpose of assuming and spreading all or a portion of the risk of liability exposure among its group members. See 15 U.S.C.A. § 3901(a)(4)(A)-(C) (1993); § 627.-942(9)(a) and (b), Fla.Stat. (1993). Because each member has similar risks and the members are experienced in administering their own claims, the group can offer affordable coverage for each member’s needs. Intrinsic in the group’s operation, however, is the ability of each of its members to retain some portion of the risk. The level of “self-insured retention” retained by each member provides an economic incentive to control risks and administrate claims efficiently and thereby avoid the higher cost of commercial premiums. By requiring the purchase of dollar one coverage, Session Law 92-29 eliminates the members’ ability to retain risk and thereby discriminates against risk retention groups and their members. See 15 U.S.C.A. § 3905(d) (incorporating the provisions of section 3902(a)(4) relating to discrimination).
The federal law does not preempt the means by which the State can require financial responsibility for self-insurance, but the State cannot effectively eliminate the risk that may be retained by members of risk retention groups. The State must develop ways to strengthen its financial responsibility laws that do not eliminate risk retention group members’ ability to be self-insured.
APPENDIX
United States District Court Middle District of Florida Orlando Division.
Mears Transportation Group, Inc., et al., Plaintiffs, v. Fred O. Dickinson, III, Defendant.
Case No. 92-632-CIV-ORL-22
Dee. 30, 1992.
ORDER
This cause comes before the Court for consideration of Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 34), filed October 13, 1992. Therein, Plaintiffs contend that reeently-effeetive Florida Session Law 92-29, which amended § 324.031, Florida Statutes (1992), violates the Liability Risk Retention Act, 15 U.S.C. §§ 3901-3906, and is therefore invalid. After having carefully considered the parties’ submissions, the Court agrees and determines that partial summary judgment should be granted in Plaintiffs’ favor.
The first six Plaintiffs named in the Amended Complaint are in the for-hire passenger transportation business. As its name *1021suggests, the remaining Plaintiff, Paratransit Risk Retention Group of Maryland, Inc. (“Paratransit”), is a risk retention group. The Defendant is Fred 0. Dickinson, III, the Executive Director of the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”).
Florida’s motor vehicle financial responsibility laws, contained within Chapter 324, Florida Statutes, require motor vehicle owners and/or operators to provide financial security to recompense others for personal injury or property damage caused by operation of a motor vehicle. Prior to October 1,1992, § 324.031, Florida Statutes, governing the manner of providing financial responsibility, provided as follows:
The operator or owner of a vehicle may prove his financial responsibility by:
(1) Furnishing satisfactory evidence of holding a motor vehicle liability policy as defined in s. 324.021(8) and s. 324.151;
(2) Posting with the [DHSMV] a satisfactory bond of a surety company authorized to do business in this state, conditioned for payment of the amount specified in s. 324.-021(7);
(3) Furnishing a certificate of the [DHSMV] showing a deposit of cash or securities in accordance with s. 324.161; or
(4) Furnishing a certificate of self-insurance issued by the [DHSMV] in accordance with s. 324.171.
Notwithstanding the amounts specified in s. 324.021(7) or s. 324.161, any person, including any firm, partnership, association, corporation, or other person, other than a natural person, electing to use the method of proof specified in subsection (2) or subsection (3) shall post a bond or deposit equal to the number of vehicles owned times $25,000, to a maximum of $100,000; in addition, any such person, other than a natural person, shall maintain insurance providing coverage in excess of limits of $10,000/20,000/5,000 or $25,000 combined single limits, and such excess insurance shall provide minimum limits of $50,000/100,000/25,000 or $100,000 combined single limits.
Before October 1, 1992, Mears complied with the statute by, in part, purchasing insurance coverage through Paratransit. In turn, DHSMV issued a financial responsibility certificate to Plaintiff Mears Transportation Group, Inc. and its affiliates (the other named Plaintiffs).
Florida Session Law 92-29, effective October 1,1992, created a distinction in the financial responsibility laws between owners/operators of for-hire passenger transportation vehicles and owners/operators of motor vehicles in general. The Session Law, which amended § 324.031, continued to allow owners/operators of other than for-hire passenger transportation vehicles to prove financial responsibility by the four methods set forth in § 324.-031(l)-(4). However, the Session Law changed § 324.031 to provide that
[t]he owner or operator of a taxicab, limousine, jitney, or any other for-hire transportation vehicle may prove financial responsibility by providing satisfactory evidence of holding a motor vehicle liability policy as defined in s. 324.021(8) or s. 324.151, which policy is issued by an insurance carrier which is a member of the Florida Insurance Guaranty Association.
As amended, § 324.031 thus prohibits owners/operators of for-hire passenger transportation vehicles from purchasing insurance from risk retention groups to satisfy financial responsibility, inasmuch as. risk retention groups are not permitted to join the Florida Insurance Guaranty Association (“FIGA”).
Prior to the effective date of Session Law 92-29, a representative of DHSMV wrote a representative of Plaintiff Mears Transportation Group, Inc., stating, in pertinent part, as follows:
Your financial responsibility certificate will expire November 5, 1992. Based upon a new law effective October 1,1992, the owner or operator of a taxi, limousine, or other for-hire passenger transportation vehicle will be required to prove their financial responsibility by purchasing an insurance policy through an insurance company which belongs to the Florida Insurance Guaranty Association. Therefore, effective October 1, 1992, this office will have no alternative but to cancel your financial responsibility certificate.
As previously stated, Plaintiffs contend that Session Law 92-29 violates the Liability Risk Retention Act (“LRRA”), 15 U.S.C. §§ 3901-3906. Specifically, Plaintiffs assert *1022that the Session Law violates §§ 3902(a)(1), (2) and (4) of the LRRA. These statutory sections provide as follows:
(a) Exemptions from State laws, rules, regulations, or orders
Except as provided in this section, a risk retention group is exempt from any State law, rule, regulation, or order to the extent that such law, rule, regulation, or order would—
(1) make unlawful, or regulate, directly or indirectly, the operation of a risk retention group except that the jurisdiction in which it is chartered may regulate the formation and operation of such a group and any State may require such a group to — [exceptions not pertinent];
* * * * * *
(2) require or permit a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the State is required to belong;
* * * * * *
(4) otherwise discriminate against a risk retention group or any of its members, except that nothing in this section shall be construed to affect the applicability of State laws generally applicable to persons or corporations.
Clearly, Session Law 92-29 at least indirectly regulates the operation of risk retention groups, thereby violating 15 U.S.C. § 3902(a)(1). It also violates 15 U.S.C. § 3902(a)(4) for the reason that it otherwise discriminates against a risk retention group. Although Defendant argues that an issue exists concerning whether the Session Law in fact discriminates against risk retention groups, the Court rejects that contention. Inasmuch as risk retention groups cannot belong to FIGA, and Session Law 92-29 requires for-hire passenger transportation businesses to use FIGA insurers to satisfy financial responsibility, the Session Law plainly discriminates against risk retention groups.
Moreover, although § 3902(a)(4) contains an exception for “State laws generally applicable to persons or corporations”, the Court determines that the amendment effected by the Session Law 92-29 does not qualify under that exception. Rather than a law of general application, the amendment created by the Session Law is narrowly focused on the manner in which owners/operators of for-hire passenger transportation vehicles may satisfy financial responsibility. To apply § 3902(a)(4) in a contrary manner would only serve to eviscerate the prohibition against discrimination contained in that section.
Defendant also contends that by virtue of two other exceptions contained in the LRRA, Session Law 92-29 does not violate the LRRA. Defendant first relies on 15 U.S.C. § 3902(b). That statutory provision reads as follows:
(b) Scope of Exemptions
The exemptions specified in subsection (a) of this section apply to laws governing the insurance business pertaining to—
(1) liability insurance coverage provided by a risk retention group for—
(A) such group; or
(B) any person who is a member of such group;
(2) the sale of liability insurance coverage for a risk retention group; and
(3) the provision of—
(A) insurance related services;
(B) management, operations, and investment activities; or
(C) loss control and claims administration (including loss control and claims administration services for uninsured risks retained by any member of such group);
for a risk retention group or any member of such group with respect to liability for which the group provides insurance. (Emphasis supplied).
Defendant contends the LRRA exemptions upon which Plaintiffs rely do not apply because Session Law 92-29 is not a law “governing the insurance business”, as that phrase is used in the introductory portion of § 3902(b). The Court disagrees. Session Law 92-29 provides that only automobile liability insurance written through a FIGA-member insurer may be used by owners/operators of for-hire passenger transportation vehicles to satisfy financial responsibility. Plainly, it is a law which governs the insurance business.
*1023Defendant also relies on another part of the LRRA, Section 8905, which is entitled “Clarification concerning permissible State authority”. That section provides, in pertinent part, as follows:
(a) State motor vehicle no-fault and motor vehicle financial responsibility laws
Nothing in this chapter shall be construed to exempt a risk retention group or purchasing group authorized under this chapter from the policy form or coverage requirements of any State motor vehicle no-fault or motor vehicle financial responsibility insurance law.
******
(d) State authority to specify acceptable means of establishing financial responsibility
Subject to the provisions of section 3902(a)(4) of this title relating to discrimination, nothing in this chapter shall be construed to preempt the authority of a State to specify acceptable means of demonstrating financial responsibility where the State has required a demonstration of financial responsibility as a condition for obtaining a license or permit to undertake specified activities. Such means may include or exclude insurance coverage obtained from an admitted insurance company, an excess lines company, a risk retention group, or any other source regardless of whether coverage is obtained directly from an insurance company or through a broker, agent, purchasing group, or any other person.
Essentially, Defendant contends that §§ 3905(a) and (d) authorize states to exclude insurance provided by all risk retention groups as a means of satisfying motor vehicle financial responsibility laws. Again, the Court must reject this contention.
Defendant’s reliance on § 3905(a) seems rather halfhearted, and for good reason. Session Law 92-29 does not seek to impose policy form or coverage requirements upon risk retention groups. Rather, it seeks to completely exclude insurance provided by risk retention groups to owners/operators of for-hire passenger transportation vehicles as a means of satisfying the financial responsibility law. Accordingly, § 3905(a) does not apply.
Defendant’s reliance on § 3905(d) is also misplaced. At least one court has already rejected virtually the same § 3905(d) argument Defendant makes. The court in Charter Risk Retention Group Insurance Company v. Rolka, 796 F.Supp. 154, 158 (M.D.Pa.1992), stated that such an argument overlooked the first sentence of § 3905(d), which provides that the section is subject to the anti-discrimination provision contained in § 3902(a)(4). Continuing, the court stated:
To interpret section 3905(d) as defendants insist (thus, granting states unlimited discretion to dictate the means of demonstrating financial responsibility) would render meaningless the anti-discrimination provisions of [the] Act. Rather, the two sections must be read together to properly construe the Act’s meaning.
Rolka, 796 F.Supp. at 158. In a footnote, the court concluded that § 3905(d) does not permit a state to exclude risk retention groups in general as a means of satisfying financial responsibility laws. Specifically, the court stated that
[§ 3905(d) ] means that should a particular risk retention group fail to meet conditions of financial responsibility, they may be properly excluded. Any other reading of this provision (such as that states may exclude risk retention groups in general as a means of financial responsibility) would allow states to discriminate against all risk retention groups and their members in violation of the anti-discrimination provisions of the Act. (Emphasis in original).
Rolka, 796 F.Supp. at 159, n. 6.
The Court approves and adopts the reasoning set forth in Rolka. By virtue of the incorporation of the anti-discrimination provision from § 3902(a)(4) into § 3905(d), the latter section does not permit the State of Florida to exclude insurance obtained from risk retention groups in general as a means of satisfying its motor vehicle financial responsibility laws insofar as they relate to owners/operators of for-hire passenger transportation vehicles. Moreover, although § 3902(a)(4) contains an exception for “State laws generally applicable to persons or corporations”, the Court has previously determined in this Order that Session Law 92-29 is not such a law. Accordingly, that exception does not apply.
*1024Based on the foregoing, it is ORDERED as follows:
1. Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 34) is GRANTED.
2. The Clerk is directed to enter summary judgment in Plaintiffs’ favor on Count III of Plaintiffs’ Amended Complaint.
3. Plaintiffs are directed to furnish the Court and Defendant with a proposed permanent injunction within 10 days from the date of this Order.
DONE AND ORDERED in Chambers in Orlando, Florida, this 30th day of December, 1992.
/s/ Anne C. Conway
ANNE C. CONWAY
United States District Judge
Copies to: Counsel of Record