author: LYONS, Justice.

text:
    CLEMENT CONTRACTING GROUP, INC. v. COATING SYSTEMS, L.L.C., and Mark Underwood.
    1021337.
    Supreme Court of Alabama.
    Sept. 5, 2003.
    Rehearing Denied Nov. 21, 2003.
    Frances R. Clement, Montgomery, for appellant.
    Jeffrey W. Smith of Slaten & O’Connor, Montgomery, for appellees.
   LYONS, Justice.

Clement Contracting Group, Inc., appeals the trial court’s summary judgment in favor of Coating Systems, L.L.C., and Mark Underwood. We affirm.

Facts and Procedural History

Clement, an Alabama corporation, is a general contractor. Coating Systems, an Alabama limited liability company, is a painting subcontractor. According to Coating Systems’ articles of organization, Underwood is the sole member and the manager of the company. The Alabama Limited Liability Company Act, § 10-12-1 et seq., Ala.Code 1975 (“the LLC Act”), defines a “member” as “[a] person reflected in the required records of a limited liability company as the owner of some governance rights of a membership interest in the limited liability company,” § 10-12 — 2(5); it defines a “manager” as “[a] person or persons designated by the membership of a limited liability company to manage the limited liability company as provided in the articles of organization,” § 10-12-2®.

In February 2000, Clement and Coating Systems entered into a contract pursuant to which Coating Systems would be responsible for painting a building Clement was constructing. Underwood signed the contract with Clement, writing the word “member” under his signature. A dispute arose concerning the work performed by Coating Systems and the amount of payment due under the contract, and Clement initiated arbitration proceedings against Coating Systems and Underwood pursuant to an arbitration clause in the contract. Clement sought to have Coating Systems and Underwood held liable for breach of the contract. Coating Systems and Underwood then filed a complaint for a judgment declaring the parties’ rights under the arbitration provision in the contract and an ex parte motion to stay the arbitration proceedings while the declaratory-judgment action was pending. They also asked the trial court to find that Underwood “is not personally liable and individually subject to the arbitration clause of said [contract] and that the dispute and arbitration is between Clement and Coating Systems.” The trial court issued an order granting Coating Systems and Underwood’s motion to stay the arbitration proceedings pending a resolution of the declaratory-judgment action.

Clement then filed a motion to compel arbitration, a motion to dissolve the stay, and a motion for a summary judgment in the declaratory-judgment action. In response to Clement’s motions, Coating Systems and Underwood filed a motion for a summary judgment. Clement filed a response and a brief in opposition to Coating Systems and Underwood’s motion for a summary judgment. After a hearing on the motions, the trial court denied Clement’s motions for a summary judgment and to compel arbitration. The trial court also entered a summary judgment in favor of Coating Systems and Underwood, concluding that “Underwood is not subject to arbitration in his individual capacity.” The trial court further stated that “arbitration may proceed between [Clement] and [Coating Systems].” Clement appealed.

Standard of Review

The principles of law applicable to the granting of a summary-judgment motion are well-settled. To grant a summary-judgment motion, the judge must determine that no genuine issue 'of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing as to those two conditions, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Bald win County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In reviewing a summary judgment, we apply the same standard as did the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Analysis

Clement raises three arguments on appeal. The only issue properly before this Court, however, is whether the trial court correctly determined that Underwood is not subject to the arbitration agreement in his individual capacity. In their declaratory-judgment action, Coating Systems and Underwood requested that the trial court “determine that Mark Underwood is not personally and individually subject to the arbitration clause of said [contract] and that the dispute and arbitration is between Clement and Coating Systems, LLC.”

The arbitration agreement is included in the contract between Clement and Coating Systems. It provides:

“14.1 AGREEMENT TO ARBITRATE. All claims, disputes and matters in question arising out of, or relating to, this Agreement or the breach thereof, except for claims which have been waived by the making or acceptance of final payment, and the claims described in Paragraph 14.2, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. Notwithstanding other provisions in the Agreement, this agreement to arbitrate shall be governed by the Federal Arbitration Act.

“14.2 EXCEPTIONS. The agreement to arbitrate shall not apply to any claim:

“(a) of contribution or indemnity asserted by one party to this Agreement against the other party and arising out of an action brought in a state or federal court or in arbitration by a person who is under no obligation to arbitrate the subject matter of such action with either of the parties hereto or does not consent to such arbitration; or
“(b) asserted by the Subcontractor against the Contractor if the Contractor asserts said claim, either in whole or part against the Owner, or asserted by the Owner against the Contractor, when the contract between the Contractor and Owner does not provide for binding arbitration, or does so provide but the two arbitration proceedings are not consolidated, or the Contractor and Owner have not subsequently agreed to arbitrate said claim. In either case the parties hereto shall notify each other before or after demand for arbitration is made.
“In any dispute arising over the application of this Paragraph 14.2, the question of arbitrability shall be decided by the appropriate court and not by arbitration.”

Neither the contract nor the arbitration agreement provides that Underwood in his individual capacity is subject to the terms and provisions therein. Underwood signed the contract as the agent of Coating Systems. His signature appears beneath a line on which is typed “Coating Systems, LLC” and underneath which is typed “Subcontractor.” Underwood signed his name on the next line, on which is typed “By:” and underneath which is typed the word “Title.” The word “member” is handwritten on a blank line beneath Underwood’s signature.

Clement argues that because Underwood signed the contract as a “member” rather than as the “manager” of Coating Systems he can be held personally liable pursuant to § 10-12-21(b). That section states, in pertinent part:

“(b) If the articles of organization provide that management of the limited liability company is vested in a manager or managers, both of the following conditions apply:
“(1) No member, acting solely in the capacity as member, is an agent for the limited liability company.
“(2) Every manager is an agent of the limited liability company for the purpose of its business or affairs, and the act of any manager, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company binds the limited liability company, unless the manager so acting has, in fact, no authority to act for the limited liability company in the particular matter and the person with whom the manager is dealing has knowledge of the fact that the manager has no such authority.”

Because the articles of organization for Coating Systems provide that the company’s management is “vested in its Managers,” Underwood should have signed the contract in his capacity as manager rather than in his capacity as member. Nevertheless, because Underwood is both the sole member and the manager of Coating Systems, he clearly is the only person with the authority to bind the company and was the only agent with the authority to execute the contract with Clement. In no event did he execute the contract in his individual capacity — he obviously did so as an agent of Coating Systems.

The LLC Act does not envision that either a member or a manager of a limited liability company would be liable in an individual capacity for the actions of the limited liability company. Section 10-12-18 states that “[n]either a member nor a manager of a limited liability company is a proper party to proceedings by or against a limited liability company, except where the object is to enforce a member’s or manager’s rights against or liability to the limited liability company.” Furthermore, in discussing the liability of members to third parties, § 10-12-20 provides:

“(a) Except as otherwise provided in this chapter, a member of a limited liability company is not liable under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company.
“(b) A member may be liable to creditors of the limited liability company for a written agreement to make a contribution to the limited liability company.
“(c) A member of a limited liability company may become liable by reason of the member’s own acts or conduct.”

The mere act of signing the contract on behalf of Coating Systems in his capacity as a member did not make Underwood a signatory to the contract in his individual capacity.

The issue before us, then, is whether Underwood, as a nonsignatory to the contract containing the arbitration agreement, is subject individually to the arbitration agreement. We have previously addressed this issue in Ex parte Tony’s Towing, Inc., 825 So.2d 96 (Ala.2002). In that case, we examined whether Tony’s, a defendant in the underlying tort action and a nonsignatory to the applicable arbitration agreement, could be compelled to arbitrate a claim asserted by a signatory. The co-defendants had moved to compel arbitration. The plaintiff signatory joined with the codefendants in opposing Tony’s effort to avoid arbitration. We held that a non-signatory could not be compelled, under the doctrine of equitable estoppel, to arbitrate claims brought against it by the signatory.

We recognized in Tony’s Towing that, within the context of the doctrine of intertwining, the “the doctrine of estoppel operates to prevent a signatory to an arbitration agreement from frustrating arbitration of a related claim against a non-signatory where the nonsignatory seeks arbitration.” 825 So.2d at 98. We noted, however, that such a scenario was distinctly different from that faced by Tony’s, where a signatory to the arbitration agreement sought to compel arbitration over the objection of a nonsignatory. We emphasized that Tony’s had not signed the arbitration agreement, stating that “Tony’s, as a nonsignatory, has never agreed to arbitrate anything and, therefore, it is not estopped from avoiding arbitration.” 825 So.2d at 98. We also recognized that Tony’s right to proceed in a judicial forum would be defeated if it was forced to arbitrate despite its objections. 825 So .2d at 99.

As previously stated, Underwood merely signed the contract between Clement and Coating Systems as a member of Coating Systems. In his individual capacity he is a nonsignatory to the arbitration agreement, and he did not agree to be subject to the arbitration agreement between Clement and Coating Systems. Based on our decision in Tony’s Towing, we hold that the trial court did not err in entering a summary judgment for Coating Systems and Underwood and in determining that Underwood is not individually subject to the arbitration agreement.

We note that the request for relief in Coating Systems and Underwood’s complaint for a declaratory judgment was that the trial court “determine that Mark Underwood is not personally and individually subject to the arbitration clause of said subcontract and that the dispute and arbitration is between Clement and Coating Systems, LLC.” The relief granted by the trial court’s order did not extend beyond the relief requested by Coating Systems and Underwood. Whether Underwood may be held individually hable in subsequent judicial proceedings is not before us at this time.

Conclusion

We hold that Underwood is not subject individually to the arbitration agreement between Clement and Coating Systems. The trial court’s summary judgment is affirmed.

AFFIRMED.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . There are two versions of § 10-12-21 in the Code. The two versions have different applicability dates and a limited liability company could elect to be governed by one over the other. We need not decide, however, which is applicable here because subsection (b) is identical in both versions.


source: Caselaw Access Project

author: HOUSTON, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    TYSON FOODS, INC. v. Martha McCOLLUM.
    1020829.
    Supreme Court of Alabama.
    Sept. 12, 2003.
    Rehearing Denied Nov. 21, 2003.

      David L. Warren, Jr., of Ogletree, Dea-kins, Nash, Smoak & Stewart, P.C., Birmingham, for appellant.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Randy Beard and P. J. Harris of Beard & Beard, Guntersville, for appellee.
    Lawrence T. King and Richard F. Hors-ley of Goozée, King & Horsley, LLP, Birmingham, for amici curiae Betty Williams, Donnie Forbes, Anthony Musso, and James Pierce, in support of the appellee.
   HOUSTON, Justice.

Tyson Foods, Inc., appeals from the Marshall Circuit Court’s judgment entered on a jury verdict against it and in favor of Martha McCollum in her action alleging retaliatory discharge under Ala.Code 1975, § 25-5-11.1, a part of the Alabama Workers’ Compensation Act. Tyson contends, among other things, that the trial court erred in denying its motions for judgment as a matter of law, for a new trial, or for a remittitur. We hold that the trial court erred in denying Tyson’s postjudgment motion for a judgment as a matter of law, and we reverse and remand.

Alabama recognizes and protects an employer’s right to terminate an at-will employee for any reason — good or bad — or for no reason at all. Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 838 (Ala.2003) (“ ‘Under Alabama law, an employment contract is generally terminable at will by either party, with or without cause or justification — for a good reason, a wrong reason, or no reason at all.’ ” Quoting Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992).). However, Ala.Code 1975, § 25-5-11.1, provides a narrow exception to that general rule, forbidding employers from terminating an at-will employee solely because that employee sought workers’ compensation benefits:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter.... ”

(Emphasis added.)

In this case, Tyson moved for a judgment as a matter of law at the close of the plaintiffs evidence, and again at the close of all of the evidence. The trial court denied those motions. Tyson subsequently renewed its motion for a judgment as a matter of law after the trial court entered a judgment on the jury’s verdict. We review the trial court’s denial of Tyson’s postjudgment motion for a judgment as a matter of law under the following standard:

“The standard of review applicable to a ruling on a motion for [a renewed judgment as a matter of law] is identical to the standard used by the trial court in granting or denying a motion [for a judgment as a matter of law]. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“... In ruling on a motion for a [renewed judgment as a matter of law], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been ‘substantial evidence’ before the jury to create a question of fact. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993) (citations omitted).

In a retaliatory-discharge action, the former employee bears the burden of establishing each element of her claim by “substantial evidence” before that claim can go to the jury. If the employee fails to do so and the employer files a motion for a judgment as a matter of law pointing out this failure before the case is submitted to the jury (as was done in this case), the trial court errs if it submits the retaliatory-discharge claim to the jury; if the jury returns a verdict for the employee on the retaliatory-discharge claim and the trial court enters a judgment on that verdict, the trial court commits reversible error, which the employer may point out by filing a postjudgment motion for a judgment as a matter of law.

The evidence, both undisputed and disputed, viewed most favorably in support of McCollum’s retaliatory-discharge claim reveals that McCollum began work on July 29, 1997, at a chicken processing plant owned and operated by Hudson Foods, Inc.; that Tyson acquired Hudson Foods in January 1998; and that on July 21, 1998 (almost one year after McCollum started working for Hudson Foods and six months after Tyson acquired Hudson Foods), McCollum sustained an on-the-job injury to her finger while working a sealing machine on a bag line conveyor. It is undisputed that Tyson paid for all of the medical expenses McCollum incurred as a result of this injury and that McCollum received $3,100 in workers’ compensation benefits related to this injury. There is no evidence in the record indicating that (nor is there any argument concerning whether), under the Alabama Workers’ Compensation Act, this amount was excessive or inadequate for the injury McCol-lum suffered.

McCollum returned to work in September 1998, but, because of her injury, she was physically unable to perform her job on the bag line conveyor. Tyson placed her in a different job, allowing her to work in its laundry room where she was able to undergo physical therapy three times a day for her finger. As she felt able, McCollum would help out in the laundry room by hanging smocks worn by the employees while they worked. About a month after McCollum returned to work, a Tyson nurse told McCollum that McCol-lum’s doctors felt that she was ready to return to regular work and asked her if she would be willing to try to do so. McCollum agreed, and Tyson placed her in the marinated raw breaded (“MRB”) department, where her job was to check chicken that had been processed into “fingers” on a conveyor belt. The temperature of the work environment for this position was cold.

McCollum remained in this job for only three or four days, because the work, where the chicken products were conveyed on the belt at a fast speed, made her dizzy. McCollum informed Jerry Phillips, Tyson’s human resources manager, that she could not perform the work because it made her dizzy. McCollum testified that Phillips told her that Tyson did not have any other type of work that McCollum could perform, so Phillips suspended McCollum without pay for three days. McCollum also testified that she was asked to present a doctor’s excuse, and that she later presented one stating that she could not work on fast-moving production lines involving small products. McCollum also testified that three days after her meeting with Phillips, Tyson’s nurse told her that Phillips did not understand the situation and to come back to work on Monday. After McCollum presented the doctor’s excuse, Tyson placed her in the position McCollum had requested — a checker on the bag line in the MRB department. McCollum did not suffer from dizziness on this line because the bags on the line were large. Her duties in this new position involved checking to make sure that the bags were correctly sealed and coded, and, like her prior position, it was in a cold-work environment. Twelve other employees worked on this line with McCollum. McCollum testified that up until her assignment as a checker on the MRB line, no one at Tyson had harassed or mistreated her in any way.

After working on the MRB line for a time, McCollum decided to try a job in the debone department. She tried the job but did not like it because she could not operate the machine well with one hand and because it was colder in the debone department than it was in the MRB department. She requested to be, and was, returned to her job in the MRB department.

McCollum testified that on March 10, 2000 (approximately 18 months after she had returned to work following the injury for which she received workers’ compensation benefits and approximately 20 months after she had filed her claim for those benefits), while working on the evening shift, she became sick; she was sneezing and coughing, and she had a temperature. The illness had nothing to do with the 1998 injury to her hand for which she had received workers’ compensation benefits. McCollum went to the clinic at the plant and saw the nurse. After she saw the nurse, McCollum told her supervisor, Joe Carroll, that she was ill and needed to go home. Carroll told her that he needed to get David Smith, a processing superintendent, but before going to get Smith, Carroll moved McCollum down the line away from any blowing air. McCollum moved, but told Carroll that moving away from the blowing air would not help because she was already sick.

Carroll left to find Smith, and Smith then came up and stood next to McCollum on the line. The conversation between McCollum and Smith and the circumstances surrounding that conversation are the focus of much of the dispute in this case. However, under our standard of review, McCollum’s version of the conversation, as stated below, controls.

McCollum testified that she told Smith that she was ill, advised him that she had seen the plant nurse, and informed him that she needed to go home. Smith would not authorize her leaving and told her that if she left, it would be an unauthorized leave. McCollum replied: “Do you mean I’m fired?” Smith answered: “Yes, you will lose your job if you leave.” At this point, the power in the entire plant went off as the result of a thunderstorm, and Smith left McCollum. Smith testified that before leaving McCollum to go check on the power outage, Smith told her, “Wait just a minute.” However, McCollum did not wait; rather, she told Carroll what Smith had said and advised him that she was sick and was going home. Carroll replied “okay,” and McCollum left.

When Smith returned 25 to 30 minutes later after checking on the power outage, he learned that McCollum had left. Smith then filled out a separation notification form, which stated that McCollum had “walked off the job.” He checked the block indicating that she was “not eligible for rehire,” and he described the circumstances on this form as follows: “Martha [McCollum] walked off of her job and left.” It is undisputed that Smith was aware that McCollum had previously sustained an injury at work, but he claimed that he was unaware that she had instituted or maintained an action or had even filed a claim for workers’ compensation benefits.

McCollum testified that she returned to Tyson on March 17, 2000, to pick up her paycheck. A Tyson employee presented her with an exit-interview form and instructed her to fill it out to indicate that she had quit her employment. She adamantly refused to sign this statement because she claimed that she had not quit, but that she had been fired.

She was then asked to complete the form by stating the reason for the cessation of her employment. She wrote on the form that she was fired for asking to leave work because she was sick. On the form, she rated her department as “fair” and her supervisor as “poor.” She presented the form to Cindy Light, an assistant personnel manager, and Light stated that “there’s something wrong” and she requested that McCollum wait a few minutes while Light spoke with Jerry Phillips, Tyson’s human resources manager. McCol-lum then met with Phillips and Jeanette Masters, a union representative who happened to be in the plant at the time. Phillips inquired about the circumstances leading to the termination of McCollum’s employment. She explained the circumstances to him, and Phillips stated that Smith, McCollum’s supervisor, did not have the authority to fire McCollum, that he should not have terminated her, and that terminating her was the wrong thing to do. McCollum replied that she did not want to work at Tyson because she was frightened of the harassment she claimed to have experienced while she was employed at Tyson.

Phillips asked her to return to work, requesting that she take a few days to think about it and that she then advise him of her decision. She telephoned several days later to advise him that she would not return because she was afraid to do so.

As stated above, a retaliatory-discharge claim under Ala.Code 1975, § 25-5-11.1, requires evidence that the plaintiff was terminated solely because the plaintiff had instituted or maintained an action against the employer to obtain workers’ compensation benefits. While this Court has recognized that Ala.Code 1975, § 25-5-11.1, is remedial legislation and, thus, that it should be construed liberally, it also has cautioned that courts must “refrain from construing § 25-5-11.1 in a manner that revises the at-will doctrine beyond the extent necessary to accommodate the obvious legislative purpose.” Alabama Power Co. v. Aldridge, 854 So.2d 554, 562 (Ala.2002).

As used in § 25-5-11.1, the adverb “solely” modifies the verb “terminated.” The American Heritage Dictionary of the English Language (4th ed.2000) defines the adverb “solely” as “[a]lone; singly: solely responsible. Entirely; exclusively.” To “institute” is “[t]o inaugurate or commence, as to institute an action.” Black’s Law Dictionary 800 (6th ed.1990). “To ‘maintain’ an action is to uphold, continue on foot, and keep from collapse a suit already began, or to prosecute a suit with effect.... To maintain an action or suit may mean to commence or institute it.... Maintain, however, is usually applied to actions already brought, but not yet reduced to judgment.... In this connection it means to continue or preserve in or with; to carry on.” Black’s Law Dictionary 953 (6th ed.1990). “Action” in its legal sense “means a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law.” Black’s Law Dictionary 28 (6th ed.1990).

In this case, it is undisputed that McCol-lum did not file or maintain any “action” for workers’ compensation benefits as the term “action” is defined above. However, in McClain v. Birmingham Coccu-Cola Bottling Co., 578 So.2d 1299 (Ala.1991), we interpreted § 25-5-11.1 as covering even the filing of a claim for workers’ compensation benefits. Tyson does not ask us to revisit that holding.

The narrow language in § 25-5-11.1 makes it clear that a cause of action brought under that section cannot be based merely on facts that show that the plaintiff was terminated at some point after that plaintiff had filed a claim for or received workers’ compensation benefits. See Hayden v. Bruno’s, Inc., 588 So.2d 874, 876 (Ala.1991) (refusing to assume that a termination was retaliatory merely because it followed the filing of a claim for workers’ compensation benefits). Instead, § 25-5-11.1 demands that there be specific knowledge of the plaintiffs claim for benefits on the part of the one who terminated the plaintiff, and that that knowledge be the sole motivating force behind the termination. There is no room in the statute for a generalized “imputation” of such knowledge throughout a company or other entity; rather, in order to establish a pri-ma facie case, the plaintiff must demonstrate, by substantial evidence, a direct and distinct causal link between one having knowledge of the plaintiffs workers’ compensation claim and the termination. See Aldridge, 854 So.2d at 563 (“A plaintiff must prove a causal connection between the workers’ compensation claim and the subsequent discharge in order to establish a prima facie case.”).

In this case, many facts are in dispute. However, some of the facts relevant and essential to establishing a prima facie case are undisputed and are fatal to McCollum’s cause of action. According to McCollum’s account of what happened on March 10, 2000, McCollum was terminated on that date by David Smith. Smith had no knowledge of McCollum’s workers’ compensation claim, which was concluded some 20 months before the date of her termination. There is no substantial evidence .indicating that Smith’s termination of McCollum had anything to do with McCollum’s having received workers’ compensation benefits from Tyson. While Smith may have had knowledge of McCol-lum’s on-the-job injury, it is neither necessary nor prudent, on that basis alone, to impute to Smith knowledge of McCollum’s filing of a workers’ compensation claim.

While McCollum’s retaliatory-discharge claim is clearly directed at her allegation that Smith fired her in retaliation for her having filed a workers’ compensation claim, much of the evidence put on by McCollum at trial wavers, in an obfuseatory manner, between that allegation and a general assertion that, she was “constructively discharged.” A “constructive discharge” occurs when “ ‘the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’ ” Irons v. Service Merchandise Co., 611 So.2d 294, 295 (Ala.1992) (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990)). A retaliatory-discharge claim under Ala.Code 1975, § 25-5-11.1, can certainly be based upon a constructive discharge. See Ex parte Breit-sprecher, 772 So.2d 1125 (Ala.2000). However, at the trial of this case, McCol-lum was adamant that Smith fired her on March 10, 2000. Rather than basing her retaliatory-discharge claim on any alleged constructive discharge, McCollum appears to have offered evidence of alleged poor working conditions and harassment by co-employees to imply some general pattern of poor treatment by Tyson of workers who had filed claims for workers’ compensation benefits. Of course, this implication was hotly disputed by Tyson. However, the difficulty is that most of this evidence was not relevant, because, according to McCollum, she did not leave her job under duress. Instead, according to McCollum’s own testimony, Smith — not Tyson in general — fired her, and there is no evidence indicating that Smith had knowledge of her workers’ compensation claim.

Simply put, even when viewed in the light most favorable to McCollum, there is no substantial evidence of a direct and distinct causal link between one having knowledge of the plaintiffs workers’ compensation claim and the termination. Therefore, McCollum failed to establish a prima facie case of retaliatory discharge under Ala.Code 1975, § 25-5-11.1, and the trial court erred in denying Tyson’s post-judgment motion for a judgment as a matter of law.

REVERSED AND REMANDED.

SEE, BROWN, HARWOOD, and STUART, JJ., concur.

LYONS, JOHNSTONE, and WOODALL, JJ., dissent.

JOHNSTONE, Justice

(dissenting).

Our case of Alabama Power Co. v. Aldridge, 854 So.2d 554 (Ala.2002), identifies some of the circumstances that tend to prove that a plaintiff “was fired solely because of his [or her] workers’ compensation claim,” 854 So.2d at 564:

“ ‘Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations. Any evidence of an actual pattern of retaliatory conduct is, of course, very persuasive.’ ...
“Texas considers the following factors as circumstantial evidence of a causal relation between the filing of a workers’ compensation claim and an employee’s discharge:
“ 1) knowledge of the. compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee’s injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee’s work performance evaluations following a workers’ compensation claim, and 6) evidence that the stated reason for the discharge was false.’ ”

854 So.2d at 564-65. While the Texas statute may not require that the filing of the workers’ compensation claim be the sole proximate cause of the termination, the “but-for” test of the Texas statute, Aldridge, 854 So.2d at 564, does require that the filing be at least one of the proximate causes of the termination. Thus, Texas law for proving this particular proximate cause is appropriately adopted by Alabama for the same purpose.

In the case now before us, the evidence is undisputed that the plaintiff McCollum lost part of a finger in an on-the-job accident while she was employed by Tyson, that she filed a workers’ compensation claim for the injury, and that Tyson paid workers’ compensation to her pursuant to the claim. The record contains substantial evidence that Tyson treated the plaintiff well before her on-the-job injury and oppressively after her return to work following her injury and her workers’ compensation claim. The record also contains substantial evidence that Tyson did not treat employees who had not suffered injuries and filed workers’ compensation claims as badly.

The record contains substantial, albeit disputed, evidence that, one day some 20 months after the plaintiff filed her workers’ compensation claim, David Smith, acting within line and scope of his employment with Tyson as its processing superintendent, terminated the plaintiffs employment with Tyson on the ground that she went home early because she was sick. The record contains substantial evidence that such a termination violated company policy and that Tyson did not terminate other employees on the same ground.

The claim by Tyson that the plaintiffs employment ended solely because she voluntarily quit is disputed by the plaintiffs substantial evidence to the contrary. Tyson offers no other cause or reason for the termination.

Tyson admits that, at the time the plaintiffs employment ended, David Smith knew she had suffered the on-the-job injury. Because factory workers who are injured on the job rarely do not claim workers’ compensation, Smith’s position as processing superintendent with authority to terminate employees, together with his knowledge of the plaintiffs on-the-job injury, supports a reasonable inference that Smith knew or deduced that the plaintiff had filed a workers’ compensation claim.

All of this evidence constitutes a prima facie case that Tyson, in contravention of § 25-5-11.1, Ala.Code 1975, terminated the plaintiff solely because she had claimed workers’ compensation. Alabama Power Co. v. Aldridge, supra. Thus, I respectfully dissent from the conclusion, and from the rationale for the conclusion, that the plaintiff “McCollum failed to establish a prima facie case of retaliatory discharge under ... § 25-5-11.1, [Ala.Code 1975,] and the trial court erred in denying Tyson’s postjudgment motion for a judgment as a matter of law.” 881 So.2d at 985.

LYONS, J., concurs.

      . The temperature of the work environment for the job McCollum performed before her injury had also been cold. Federal regulations required Tyson to keep the temperature below 50 degrees to prevent bacteria growth on the chicken products.

      . Dizziness associated with working that conveyor belt was apparently common, because co-employees working on that line told McCollum that she would know in three or four days whether she could tolerate the speed of the line.

      . Phillips contended that sending McCollum home without pay was not a disciplinary action or a suspension but was done out of concern for her safety because he feared that she might get hurt.

      . Phillips stated that the doctor’s excuse was insufficient and that he needed further clarification that she could not work on the line because of "persistent vertigo.”

      . As a union member, McCollum could bid upon other open positions.

      . It is apparently undisputed that while she worked in the debone department she experienced no workplace harassment.

      . This was the first time during her employment that she had gotten sick at work and had asked to leave early.

      . Additionally, McCollum testified that there were ample workers available to fill in for her that night because it was a slow production night.

      . McCollum did not report to work on her next scheduled workday, and she did not contact anyone at Tyson between March 10 and 16, 2000.

      . Apparently, Light finalized McCollum's separation from Tyson. On March 15, 2000, McCollum's separation notification form crossed Light's desk and she signed off on the form. Light processed this form as a "walked off the job” situation, and there is no evidence indicating that when she processed it she was aware that McCollum had previously filed a claim for workers' compensation benefits.

      . See note 15, discussing McCollum's evidence of harassment by co-employees.

      . A definition for the adverb "solely” does not appear in Black’s Law Dictionary; however, the following definition for the noun "sole” appears: "[s]ingle; individual; separate. ... Without another or others.” Black’s Law Dictionary 1391-92 (6th ed.1990).

      . The first step in maintaining a cause of action for retaliatory discharge is the establishment of a prima facie case:
      "We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was 'terminated' because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for an otherwise impermissible termination.”

        Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988).

      . There is evidence indicating that Smith's termination of McCollum was not in accordance with Tyson's policy for terminating employees. However, even if Smith's alleged reason for terminating McCollum was a bad reason, or if Smith had no reason, that fact would not make the termination actionable as retaliatory. As stated above, an employer can discharge an at-will employee for a bad reason or no reason, and the employee has no right to recover damages for wrongful discharge, unless the Legislature has created such a right. See Smitherman, 872 So.2d at 838.

      . McCollum offered evidence of harassment by Antonio Ramos, a co-employee. Most of this evidence is undisputed. As a checker on the MRB line, McCollum was required to throw unsealed or improperly coded bags of chicken off the line into a large stainless steel tub. A "floor” person, Ramos would come by as part of his duties and check the bags in the tub and determine whether they needed to go back on the line or be reworked.
      McCollum testified that Ramos did certain things to harass and scare her. She testified that he would pick up the stainless steel tub and then drop it, which made a loud noise she could hear through her earmuffs and that scared her and other employees. She also testified that Ramos would throw the bags back up on the line and the bags would hit her hands. McCollum testified that one day, Ramos twice fashioned soft chicken into the shape of a penis and put it in a bag on the line. McCollum also testified that when Ramos helped run boxes of chicken patties on the line, he would sling his boxes so that it would knock other boxes into a bunch causing spills.
      McCollum complained to a supervisor about Ramos's slinging the boxes and picking up and dropping the stainless steel tub and she explained that after that Ramos’s harassing behavior would stop for a while. McCol-lum saw her supervisor shaking his head at Ramos after she complained about his conduct. Ramos played around with all of his co-employees, but his supervisor, Joe Carroll, told him at one point to stop playing around with McCollum because it bothered her. While Ramos claimed that he stopped this behavior toward McCollum after receiving the warning from Carroll, McCollum testified that the conduct continued. However, there was no direct evidence indicating that any Tyson employee instructed Ramos to harass McCol-lum in any way.
      McCollum also testified that she complained about the cold working conditions. Although McCollum was aware that the plant was cold and she had previously worked in the facility without complaining of the cold conditions, she testified that she was placed in a location where a freezer vent blew straight down on her. She testified that she observed that on other shifts, persons working in the same position as she did were not subjected to the cold blowing air.
      McCollum testified that she complained to her supervisor about the cold air blowing on her. The supervisor informed her that he would talk to the maintenance man about this condition. This did result in the cold-air condition being alleviated some, but a couple of days later the cold air was again blowing on her. According to McCollum, Tyson's supervisor admitted to one of the plant’s union representatives that the air vent could be adjusted so that it would not blow on McCollum and he promised that this change would be made, but the condition was never permanently remedied.
      McCollum also testified that, in order to try to warm herself because of the cold air directed on her, she went into the fryer room, which was a room where product was cooked and where the temperature was thus warmer. One of the supervisors barred her from going into the fryer room. She testified that other employees were permitted to go into the fryer room to warm themselves even after she had been barred from the room. She felt that she was being harassed by being denied access to this room while other employees were allowed to use it.
      In 1999, Tyson put up posters that provided a toll-free number for reporting any complaints of harassment. McCollum never telephoned the toll-free number to report any harassment. She testified that she did not use the toll-free number because co-employees told her if she reported harassment, she would be harassed even more. However, McCollum did offer evidence indicating that she frequently complained to "everybody” about Ramos and the working conditions.
      Of course, Tyson offered evidence to counter McCollum's assertions that she was being singled out for unfair treatment. However, as explained in this opinion, McCollum’s evidence of co-employee harassment and poor working conditions, even if believed, do not support her claim that she was fired by Smith solely in retaliation for her filing a workers' compensation claim.

      . Some of this evidence was offered through former Tyson employees who served as "pattern and practice” witnesses. Tyson contends that facts surrounding the termination or resignations of those witnesses were not "substantially similar,” and that the admission of this prejudicial evidence entitles Tyson to a new trial. However, our resolution of this case precludes the need to address this issue.

      . Although not essential to our holding, we note that the time frame in this case weighs heavily against McCollum’s establishment of a causal link between her workers' compensation claim and her alleged termination. She had worked only approximately one year before her claim, and her alleged termination occurred approximately 20 months after her claim was filed. See Aldridge, 854 So.2d at 563 (finding no “temporal proximity” where the discharge occurred approximately two years after the workers' compensation claim had been filed).

      . The plaintiffs proof of this essential element of her claim under § 25-5-11.1, Ala. Code 1975, is not eliminated by the evidence that Tyson, through its employee Jerry Phillips, tried to rehire the plaintiff after her termination.


author: PER CURIAM.

text:
    ALFA LIFE INSURANCE CORPORATION v. Andy GREEN and Bonnie Green.
    1011798.
    Supreme Court of Alabama.
    Sept. 12, 2003.
    Rehearing Denied Nov. 21, 2003.
    Dennis R. Riley and Robert C. Ward, Jr., of Rushton Stakely Johnston & Garrett, P.A., Montgomery, for appellant.
    Ted L. Mann of Mann, Cowan & Potter, PC, Birmingham; Rhonda P. Chambers of Taylor & Taylor, Birmingham; Lynn Jinks of Jinks, Daniel, Crow & Seaborn, LLC, Union Springs; and Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for appellees.
   PER CURIAM.

Alfa Life Insurance Corporation (“Alfa”) appeals the denial of posttrial motions for (1) a judgment as a matter of law, (2) a new trial, or (3) a remittitur of the compensatory and punitive damages awarded to the plaintiffs Andy Green and Bonnie Green (“the Greens”) on their fraud claims against Alfa. We hold that the Greens failed to demonstrate that their reliance on Alfa’s representations to them regarding a whole-life insurance policy was reasonable, and we reverse and remand.

I. Procedural History

On August 27, 1999, the Greens sued Afa in the Bullock Circuit Court, alleging fraud, suppression, and negligent or wanton failure to procure insurance. The claims arose out of the Greens’ purchase of a $500,000 whole-life insurance policy on Bonnie Green’s life.

The Greens voluntarily dismissed their negligence and wantonness claims. On December 14, 2001, the jury returned a verdict for the Greens, awarding them $300,000 in compensatory damages and $3,000,000 in punitive damages. On motion of Alfa, the trial court reduced the punitive-damages award to $900,000 in accordance with Ala.Code 1975, § 6-11-21. On January 14, 2002, Afa filed a posttrial motion for a judgment as a matter of law, or, alternatively, for a new trial and a motion seeking a remittitur. The trial court denied all of Alfa’s motions. Alfa appeals.

II. Standard of Review

Regarding the standard of review of a judgment as a matter of law (“JML”), this Court has stated:

“We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is ‘indistinguishable from the standard by which we review a summary judgment.’ Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001). We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination. City of Birmingham v. Sutherland, 884 So.2d 755 (Ala.2002). In Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Ala.2000), this Court stated that ‘ “[sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ 791 So.2d at 923 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).”

Alabama Power Co. v. Aldridge, 854 So.2d 554, (Ala.2002). The Court must view the evidence most favorably to the nonmovant, in this case the Greens. Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998).

III. Facts

The following evidence is undisputed. At the time of the events that are the basis for this action Andy Green was 47 years old; he has an eleventh-grade education and can read and write. He owned a tire business in Union Springs for 20 years and owned a hay business for 10 years. He had employed lawyers and what he referred to as a “big accounting firm” that filed his federal income tax returns and did accounting work for him on an annual basis. His wife, Bonnie, who was also 47 years old, has a high-school education, can read and write, and worked as a bookkeeper for 20 years. The Greens, who had four children, wanted to leave each child $125,000, free of estate tax. In 1991, they mentioned this plan to Ben May, their Alfa insurance agent, when he visited them to discuss the renewal of their property and casualty insurance policies. May told the Greens that he knew some people at Alfa who had expertise in estate planning.

Sometime after their conversation with May, the Greens met at the Alfa office in Union Springs with May and “a lawyer representing Alfa, named Steve Hughes.” This fact-finding meeting lasted over an hour, with Hughes asking the Greens questions about their financial situation. At the end of the meeting, Hughes told the Greens that he would analyze the information they had given him and would get back with them regarding his recommendations.

The meeting with Hughes and May took place in April 1991, at the Alfa office in Union Springs. What happened at that meeting is disputed in part. It is undisputed that the Greens, Hughes, and May were present and that Hughes presented the Greens with proposals involving two Alfa life-insurance policies. The Greens rejected the first policy immediately because they would have had to pay premiums on the policy for too many years. What is in dispute is whether Hughes misrepresented or suppressed information concerning the second policy to the Greens. The Greens testified that Hughes informed them that the second policy would not require payments after either the seventh or ninth year, but in no case beyond the ninth year. Hughes testified that he did not explain to the Greens any feature of the life-insurance policy that the Greens ultimately purchased from Alfa, in-eluding the vanishing-premium feature.

It is undisputed that the Greens purchased the second policy and that they at least saw the following schedule before they signed the application to purchase the policy or paid any money to Alfa:

What other documents, if any, the Greens saw at that meeting before they decided to purchase the policy is disputed. Viewing the evidence in a light most favorable to the Greens, as our standard of review requires, we will assume that the Greens did not see the following language, which appears at the bottom of the Statement of Policy Values, before they received the policy:

“THE CURRENT VALUES ARE BASED ON OUR DECLARED INTEREST AND COST OF INSURANCE RATES. THESE MAY CHANGE WITH FUTURE CONDITIONS.
“THE CURRENT VALUES ARE BASED ON AN ANNUAL MODE OF PAYMENT. A MORE FREQUENT MODE OF PAYMENT WILL RESULT IN LOWER VALUES DUE TO INTEREST COMPOUNDING.
“CURRENT CASH VALUE IN EXCESS OF THE GUARANTEED VALUE MAY BE USED TO PAY PREMIUMS. ON THE GIVEN PROJECTED BASIS, PREMIUMS WOULD NOT BE REQUIRED AFTER THE 9TH YEAR.
“ADDITIONAL PREMIUM MAY BE REQUIRED TO KEEP THE POLICY IN FORCE IF:
“1) PREMIUMS ARE NOT PAID WHEN DUE, OR
“2) INTEREST PAID IS LESS THAN PROJECTED, OR
“3) COST OF INSURANCE RATES ARE INCREASED.”

(Capitalization original.)

In addition, May was present at the meeting. The Greens testified at trial that May had been “up-front” with them in everything he had handled for them, that they had no problem with anything May did in selling the policy, and that the jury should not find May responsible for “some alleged fraud or lying.” May testified that he explained the specific policy to the Greens, that he explained to them that if interest rates went up it would take less time “for the policy to pay for itself’ and that if the rates went down, “it would take a longer time for the policy to pay for itself.” May’s presentation to the Greens took 30 minutes. He explained the “Statement of Policy Values” previously set out in this opinion, showing what was guaranteed and what would happen if the interest rate remained at 8.5% (that rate was guaranteed for one year only). May showed the Greens that if the 8.5% rate remained the same the Greens could discontinue the premium payments after the ninth year. May testified that he thought the Greens understood the way the policy worked. May further testified that he and Hughes answered every question the Greens asked. May testified that he did not represent to the Greens that the policy would sustain itself in seven years or in nine years. The Greens did not take the stand to challenge May’s testimony.

After the representations the Greens said that Hughes made to them, the Greens received documents showing that the policy they purchased was an “Interest Sensitive Policy”; that under the column headed “Guaranteed” on the Statement of Policy Values the annual premium for the policy was $8,115 until Bonnie reached age 75; that under “Projected Vanish— 8.500%,” the annual premium was $8,115 through the ninth year of the policy. In addition, May had explained to the Greens that if interest rates went down it would take longer than nine years for the policy “to pay for itself.” Likewise, May, who was “up-front” with the Greens and with whom they had no problem about anything in selling the policy, was present and answered all questions asked of him by the Greens.

The Greens paid the premiums on the policy for nine years. They were then told that they would have to pay additional premiums. The Greens then sued Alfa.

IV. Analysis

To recover in a fraud action filed after March 14, 1997, a plaintiff must prove that he or she reasonably relied on the defendant’s alleged misrepresentation. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). The reasonable-reliance standard was the law before the release of Hickox v. Stover, 551 So.2d 259 (Ala.1989), and again became the law for all actions filed after March 14, 1997. This standard was well-stated in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757, 758-59 (Ala.1983):

“Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on , the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances....
“ ‘If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, “volun-ti non fit injuria.”
“Munroe v. Pritchett, 16 Ala. 785, 789 (1849).”

“Although the term ‘inducement’ has often been used in the description of the fourth element of suppression, it is clear that a plaintiffs ... ‘reasonable reliance’ ... is an essential element of a suppression claim.” Ex parte Household Retail Servs., Inc., 744 So.2d 871, 879 (Ala.1999).

At the time of or after Hughes made his alleged misrepresentation to the Greens, the Greens were shown a document showing that the policy they were presented with was an “Interest Sensitive Plan”; that the column of the policy headed “Guaranteed” showed that the Greens would have to pay the $8,115 annual premium until Ms. Green was 75 years of age or for 28 years; and that the policy would be paid up in nine years only if the interest rates remained at 8.5%, as indicated in the column headed “Projected Vanish— 8.500%.”

In addition, after Hughes made his alleged misrepresentation and before the Greens paid over $700 as an advance on the first premium, May explained the specific policy and explained to the Greens that if interest rates rose, it would take less time “for the policy to pay for itself. If the rates go down, it would take a longer time for the policy to pay for itself.” May showed the Greens, using the document set out earlier, that if the interest rate remained at' 8.5% the Greens could discontinue the premium payments after the ninth year. As to May, the Greens testified that he was “up-front” with them and that they had no problem with anything May did in selling the policy and that they would not want the jury “to find Ben May responsible for some alleged fraud or lying.”

Based upon this evidence, we hold that the Greens have not shown any reasonable reliance by them on anything Hughes said before the Greens paid the partial premium. It was reversible error for the trial court to refuse to grant Alfa’s motion for a judgment as a matter of law. Therefore, we reverse the trial court’s order denying the judgment as a matter of law and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . The complaint and the pretrial order cannot be reconciled with the Greens’ testimony. The complaint and the pretrial order alleged:
      "5. During this [April 1991] meeting, the [Greens] were told by Alfa’s agent, Ben May, that they could purchase a $500,000 whole life insurance policy insuring the life of the Plaintiff Bonnie C. Green by making seven annual premium payments of $8,115 and thereafter there would be no future out-of-pocket premiums required of them because the future premiums would be paid for from the values, earnings and dividends of the insurance policy.”
      The pretrial order provided:
      "[The Greens] assert that on or about April 17, 1991, Ben May, an agent and/or employee of [Alfa], told the [Greens] that they could purchase a $500,000 whole life insurance policy insuring the life of the Plaintiff Bonnie C. Green by making seven annual premium payments of $8,115 and thereafter no future-out-of-pocket premiums would be required of them because the future premiums would be paid for from the values, earnings and dividends of the insurance policy. Based on these representations the [Greens] purchased a $500,000 whole life policy on the life of Bonnie Green, bearing policy no. L317300. In reliance on the representations of [Alfa], by and through its agent and employee, the [Greens] have made seven years of premium payments equaling $56,805. On the seventh anniversary of the policy, the [Greens] were informed by [Alfa] that they would be required to pay 'another two years' because Alfa’s investments had not done so well but after two more premium payments the [Greens] would not owe any further premiums. On May 17, 1998, the [Greens] discovered the misrepresentations regarding the insurance plan.”
      Mr. Green's testimony at trial was that Ben May was a "good guy” and that he had a good reputation in Union Springs. So far as Mr. Green knew, May had been "up-front” with the Greens in everything he had handled for the Greens. Mr. Green would not want the jury "to find Ben May responsible for some alleged fraud or lying.” Ms. Green also indicated that she had no problem with anything Ben May did in selling the policy.
      Therefore, although the Greens alleged that Alfa’s liability was predicated on May’s representations, or his failure to convey certain information,,to the Greens, the case was tried solely on Alfa’s liability to the Greens predicated on Hughes's representations or failure to convey certain information to the Greens.

      . May testified that Hughes did not say anything misleading or untrue about the policy at their meeting with the Greens; that if Hughes had said something misleading or untrue to the Greens at the meeting, May would have stopped him and asked him to clarify what he had said. Specifically, May never heard Hughes promise the Greens that the policy would be paid up by any particular time. Hughes explained generally how the vanishing-premium option worked, but not as it related specifically to the policy presented to and ultimately purchased by the Greens.

      . The reasonable-reliance standard was the standard applied by this Court for 140 years before the decision in Hickox v. Stover, 551 So.2d 259 (Ala.1989). For less than an 8-year period between the decisions in Hickox and Foremost, this Court applied the justifiable-reliance standard in fraud cases, but returned to the reasonable-reliance standard for all actions filed after March 14, 1997. Foremost, supra. The justifiable-reliance standard was first advanced by Chief Justice Hornsby in his special concurrence in Southern States Ford, Inc. v. Proctor, 541 So.2d 1081, 1087 (Ala.1989):
      'Reliance' should be assessed by the following standard: A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully understand the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant’s representation if that representation is 'one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth.’ "
      541 So.2d at 1091-92 (Hornsby, C.J., concurring specially). In his special concurrence in Foremost, Justice See wrote:
      "History demonstrates that severing liberties from responsibilities invites social and legal disorder.... Alabama's experience with the 'justifiable reliance' standard for fraud is an example of the price paid for severing legal rights from concomitant responsibilities.
      "Weighed against the cost of requiring buyers to act as reasonable citizens, the cost of the experiment with 'justifiable reliance' has been too high. Unbound by the terms of their contracts, unimpeded by any prospect of summary judgment, and lured by the promise of gain, plaintiffs have choked the courts with a flood of fraud litigation. This serves as an example of the price paid for severing rights from concomitant responsibilities.”
      693 So.2d at 437-39 (See, J., concurring specially).

      4. “The elements of fraudulent suppression are: (1) that the defendant had a duty to disclose an existing material fact; (2) that the defendant suppressed that existing material fact; (3) that the defendant had actual knowledge of the fact; (4) that the defendant's suppression of the fact induced the plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage as a proximate result....”

        Ex parte Household Retail Servs., Inc., 744 So.2d 871, 879 (Ala.1999).

      . In addition, we note that May personally took the policy to the Greens after it had been prepared. The policy plainly showed that it was an interest-sensitive policy, that the current interest rate was 8.5%, that cash value in excess of the guaranteed value could be used to pay premiums and, on the projected basis, premiums would not be required after the ninth year, and that additional premiums may be required to keep the policy in force if the projected interest fell below 8.5%. The Greens were given 10 days from the delivery of the policy to refuse the policy and to receive a refund of all premiums paid. The Greens did not take advantage of this privilege.