author: HOUSTON, Justice.

text:
    HORNADY TRUCK LINE, INC. v. Don Emerson MEADOWS et al. Hornady Truck Line, Inc. v. Mildred Dorman. Stephen Lawrence Martin and Alabama Education Association v. Don Emerson Meadows et al. Stephen Lawrence Martin and Alabama Education Association v. Mildred Dorman.
    1010955, 1010956, 1011005 and 1011006.
    Supreme Court of Alabama.
    Aug. 16, 2002.
    Rehearing Applications Denied Oct. 11, 2002.

      C.C. Torbert, Jr., and J. Fairley McDonald III of Maynard, Cooper & Gale, P.C., Montgomery; and E.L. McCafferty III of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for Hornady Truck Line, Inc.
    Edward G. Bowron, John P. Kavanagh, Jr., and J. Robert Turnipseed of Pierce, Ledyard, Latta, Wadsden & Bowron, P.C., Mobile, for Stephen Lawrence Martin and Alabama Education Association.
    George B. Breedlove, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and R. Blake Lazenby of Wooten, Thornton, Carpenter, O’Brien, Lazenby & Lawrence, Talladaga, for Don Meadows, Sandra Meadows, and Chantz Meadows.
    Andrew T. Citrin and Michael S. McGlo-thren of Citrin & McGlothren, P.C., Daphne, for Mildred Dorman.
   HOUSTON, Justice.

The defendants Stephen Lawrence Martin, the Alabama Education Association (“AEA”), and Hornady Truck Line, Inc. (“Hornady”), appeal from judgments entered on jury verdicts for the plaintiffs Don Emerson Meadows, Sandra Meadows, Chantz Meadows, and Mildred Dorman in consolidated cases all arising out of a single automobile accident. The plaintiffs asserted claims of negligence and wantonness against Hornady, Martin, and the AEA and a claim of negligent entrustment against the AEA.

The defendants argue that the trial court erred in not granting their motions for judgments as a matter of law, in not granting their motions for a new trial based upon the weight of the evidence, and in certain of its evidentiary rulings. The defendants also contend that the following compensatory damages awarded to the plaintiffs are excessive: Don Meadows— $2,000,000; Sandra Meadows — $1,000,000; Chantz Meadows — $1,500,000; and Mildred Dorman — $1,750,000. The jury awarded no punitive damages. We affirm.

In resolving issues concerning the sufficiency and weight of the evidence, this Court is to view the facts and all inferences that could be drawn from those facts most favorably toward the nonmovants, the plaintiffs in this case. This Court stated the standard for reviewing a ruling on a motion for a judgment as a matter of law in Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999):

<fWhen reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996).”

As to a denial of a motion for a new trial, this Court stated in Acceptance Insurance Co. v. Brown, 832 So.2d 1 (Ala.2001):

“The denial of a motion for a new trial is within the sound discretion of the trial court. Williams v. Williams, 786 So.2d 477, 479 (Ala.2000).
“ ‘ “The jury’s verdict is presumed to be correct, and that presumption is strengthened by the trial court’s denial of the motion for a new trial.” ’ Williams, supra, 786 So.2d at 480 (quoting Friendly Credit Union v. Campbell, 579 So.2d 1288, 1291 (Ala.1991)) (other citations omitted). Moreover, ‘[t]his Court will not reverse a judgment on a jury verdict on a weight-of-the-evidence basis unless the evidence, when viewed in a light most favorable to the nonmov-ant, shows that the verdict was plainly and palpably wrong and unjust.’ Id.”

The injuries to the Meadowses and Dor-man occurred when an automobile, owned by the AEA and being driven by Martin, an AEA employee acting in the line and scope of his employment, which was headed north on Interstate 65, crossed the grass median separating the northbound and southbound lanes of traffic, entered the southbound lane, and crashed into the Meadowses’ vehicle, which was traveling in the southbound lane. The Meadowses’ vehicle was being driven by Don at a speed of between 50 and 55 miles per hour (less than the 70 miles per hour posted speed) because of weather conditions. Don testified that the AEA vehicle looked like a “silver blur” before it crashed into the Meadowses’ vehicle, injuring the occupants — Don, Sandra, and Chantz. Mildred Dorman, a passenger in the front seat of the AEA vehicle, was also injured. It is undisputed that Don could have done nothing to avoid the accident. It is also undisputed that a northbound automobile is prohibited from driving in the southbound lane of an interstate highway. It is undisputed that each of the Meadowses and Mildred Dorman were injured as a result of this collision.

Martin and the AEA contend that Hor-nady and Lonnie Johnson, an employee of Hornady who was driving a Hornady truck and acting within the line and scope of his employment, were responsible for the accident; Hornady contends that Martin was responsible for the collision. The jury found that negligence and wantonness on the parts of Martin, the AEA, and Horna-dy combined to cause the accident and the plaintiffs’ injuries.

On June 16, 2000, Johnson, who was driving an 18-wheel tractor-trailer truck owned by Hornady, and Martin, who was driving an AEA-owned Ford Crown Victoria automobile, were both traveling north on 1-65 during a severe thunderstorm. There had been a downpour of rain, and it was still raining at the time of impact. Johnson, occupying the right lane of 1-65 north, was traveling alone and was driving the tractor-trailer truck at 65 miles per hour. Martin was traveling with Dorman in the front passenger seat and was operating his vehicle, with the cruise control set at a little under 70 miles per hour, and his headlights were on. Johnson admitted that, minutes before the accident, there was a “big downpour” of rain, and that it was “still coming down pretty good” when the accident occurred. Don, who was traveling south on 1-65 at the same time with his wife Sandra and son Chantz, testified as to the weather conditions; from his testimony it could reasonably be inferred that he believed 50 to 55 miles per hour was the maximum safe operating speed based on the weather and the condition of the road.

“Q. And why did you reduce your speed to 50 or 55?
“A. Because it was so wet and so much water was on the road, heavy downpours and low visibility. I just couldn’t see far out.”

Evidence was presented indicating that partial hydroplaning of a vehicle can occur at speeds as low as 35 miles per hour and total hydroplaning can occur at around 50 miles per hour. Martin was driving the AEA automobile at a speed of a little less than 70 miles per hour, or almost 20 miles per hour beyond the speed at which total hydroplaning can occur. Johnson testified that, although he was driving the Hornady tractor-trailer truck at a speed of 65 miles per hour, he was aware that “[y]ou can hydroplane at 45 miles an hour.”

The trial court charged the jury, without objection, that the Alabama rules of the road require every person to drive “at a safe and appropriate speed ... when special hazards exist ... by reason of weather or highway conditions.” Ala.Code 1975, § 32-5A-170; Clayton ex rel. Clayton v. Fargason, 730 So.2d 160, 163-64 (Ala.1999). Unchallenged jury charges become the law of the case, Louisville & Nashville R.R. v. Atkins, 435 So.2d 1275 (Ala.1983), even if they are erroneous. Clark v. Black, 630 So.2d 1012, 1017 (Ala.1993).

The jury could reasonably have found that the speeds at which Martin and Johnson were driving were unsafe, although they were both driving within the posted speed limit.

The collision occurred as Martin and Johnson approached the bridge at Exit 34 on 1-65. Despite the facts that the vehicles were approaching a bridge and that visibility was poor as a result of the rain and the spray from the tractor-trailer truck, Martin elected to pass the truck. To do so, he moved from the right lane into the left lane when he was five or more car lengths behind the tractor-trailer truck. Martin took no measures to slow down; he did not disengage the cruise control. As Martin was passing the Hornady tractor-trailer truck, in the spray of standing water thrown up by the tractor-trailer truck’s nine left-side tires, his vehicle collided with the tractor-trailer truck.

According to Martin and Dorman, as Martin was attempting to pass the Horna-dy truck, the truck moved into the left lane without warning, struck the AEA vehicle on the passenger side, and knocked the vehicle across the grass median into the southbound lanes of 1-65 and directly into the path of the Meadowses’ vehicle. Although at trial Martin did not recall having said so, the investigating state troopers testified that Martin told them at the scene and in the hospital that at some point in the chain of events the AEA automobile hydroplaned and hit the tractor-trailer truck.

Johnson testified that he remained at all times in the right lane and that it was Martin who came into his lane. However, Johnson claimed that he became aware of the collision only after he felt the impact on his truck. Either way, Johnson admitted that he did not see what happened, and he admitted that he had not checked his side-view mirrors — something Hornady policy required him to do every 5 to 10 seconds — since he had gotten on 1-65 two to three miles before the accident occurred.

From this evidence, the jury could have found that Johnson made a lane change without checking his side-view mirrors to ensure that the lane into which he was moving was clear and that he moved into the lane occupied by the AEA vehicle. Johnson testified that the entrance ramp to 1-65 on the north side of Exit 34 was visible from the area where the impact occurred. The jury could have reasonably inferred that Johnson had reason to be making a lane change because he was approaching an entrance ramp onto 1-65 and he may have instinctively been changing lanes to make room for potential traffic entering the highway. Johnson’s own testimony supports a strong inference that he was moving into the left lane when he struck the Martin vehicle. When he “felt a bump” he “looked toward the right mirror.” Johnson admitted that his habit and practice is to look in his right-side mirror before he makes a lane change from the left lane to the right lane.

At trial, Johnson admitted that he had testified as follows in his deposition: “When I looked in the right mirror, I didn’t see nothing, I cut back.” Thus, from Johnson’s own testimony, the jury could have reasonably inferred that the truck moved into the left lane and then began to correct to the right lane after making contact with Martin’s vehicle.

Johnson had been trained extensively in the hazards of “drifting” or unconsciously steering into an adjacent lane of traffic. Hornady’s training video, which addressed the hazards and susceptibility of the drifting phenomenon, was played in open court, and the jury could have questioned Johnson’s credibility when he testified that he had “never, ever, even once” in his career as a truck driver drifted into an adjacent lane. Whether he drifted, or was intentionally changing lanes, the jury could have reasonably found from the sworn testimony of Dorman and Martin that Johnson crossed the center line of 1-65 north into the lane then occupied by the AEA automobile. Johnson testified that making a lane change without checking his side-view mirror would be a “reckless act of driving.”

The jury could also have found that Martin, once Johnson started to encroach into his lane, instead of moving further to the left or slowing down to make room for the truck or blowing his horn, hydroplaned because of his speed, his use of cruise control (i.e., his foot was not on the pedals), poor visibility, and the wet road conditions, and lost control of his vehicle and collided with the Hornady truck, and then with the Meadowses’ vehicle.

According to Johnson, the right side of Martin’s car “hung up” on the left side of the Hornady tractor-trailer truck for two or three seconds while the vehicles continued at 65 to 70 miles per hour before the vehicles disengaged. Once they disengaged, the Martin vehicle crossed the grass median into the southbound lanes of 1-65 and directly into the path of the Meadowses’ vehicle, where a second, and much more violent, collision occurred. The Meadowses’ vehicle broadsided the AEA vehicle on the passenger side — the same side that had impacted with the Hor-nady truck; the focus of the impact was on the front passenger side where Dorman was seated.

Hornady’s entire theory of how this collision occurred, including the opinions of its reconstruction expert, hinged upon skid marks found near the scene consistent with those of a tractor-trailer truck. However, before trial, Johnson testified unequivocally that he did not apply his brakes until after he passed over the bridge, and he denied leaving any skid marks on the road. Although he changed his testimony at trial, the jury was free to believe his original sworn testimony, which was before them. Because Johnson himself at one time denied leaving any skid marks at the scene, and because no witness saw Hornady’s tractor-trailer truck skid, the jury could have reasonably inferred that the skid marks used by Horna-dy’s expert to determine the point of impact between the tractor-trailer truck and the AEA automobile had been made by another tractor-trailer truck.

Hornady’s expert prepared the only diagram drawn to scale of the accident scene showing the final resting positions of the vehicles and the location of the skid marks. The diagram prepared by the investigating state trooper was indisputably not to scale. The Meadowses argued that when one compares the scale diagram prepared by Hornady’s expert, which shows the location of the skid marks in relation to the other accident-scene landmarks (which diagram was before the jury during trial and was taken with it to the jury room), with the scene photograph that shows a tractor-trailer truck (not the Hor-nady tractor-trailer truck involved in the accident) parked on the right shoulder of the northbound lanes, the skid marks match the location of this other tractor-trailer truck. The jury could have found that Johnson told the truth when he testified he did not apply the brakes at the point where the skid marks began. Thus, the jury could have disregarded all of the testimony of Hornady’s expert because it was based on skid marks the jury believed were not made by the Hornady tractor-trailer truck.

“ ‘Negligence’ is defined as ‘refer[ring] only to that legal delinquency which results whenever a man fails to exhibit the care which he ought to exhibit, whether it be slight, ordinary, or great.’ Black’s Law Dictionary 1032 (6th ed. 1990).... When determining whether a person exercised the care he should have exercised in regard to a particular situation, the trier of fact should take into account the state of mind that person had regarding dangerous conditions that may have existed in the particular area where the situation occurred.”

Clayton, 730 So.2d at 163-64.

Johnson and Martin knew the weather conditions; they knew the road conditions; they each knew the speed at which their vehicles were traveling. Don Meadows, who was separated from those vehicles by only a few hundred yards, thought that it was unsafe to operate his vehicle in excess of 50 to 55 miles per hour, even though the posted speed limit was 70 miles per hour. There was other evidence indicating that a speed of less than 35 miles per hour is the maximum safe speed at which to operate a vehicle when water is standing on the road and that a vehicle operating in excess of 50 miles per hour in that condition is riding on water and is subject to the vicissitudes of wind or moving water.

The law of the case, as stated in the trial court’s jury charge, was that Martin and Johnson had a duty to operate their vehicles “at a safe and appropriate speed when special hazards exist ... by reason of weather or highway conditions.” Martin was operating the ÁEA automobile by cruise control, which was set at a little less than 70 miles per hour; Johnson was driving the Hornady tractor-trailer truck at 65 miles per hour. Under the facts, speed alone was sufficient to allow the case to go to the jury on the negligence claim as to Martin and the AEA. Ala.Code 1975, § 32-5A-170; Clayton, supra. Under the facts, inattention alone was sufficient to allow the case to go to the jury on the negligence claim as to Hornady. Ala.Code 1975, §§ 32-5A-82(2) and 32-5A-133(a); Winfrey v. Witherspoon’s, Inc., 260 Ala. 371, 71 So.2d 37 (1954).

“This Court has clarified the definition of wantonness in Alfa Mutual Insurance Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998):
“ ‘ “Wantonness” is statutorily defined as “[cjonduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Ala.Code 1975, § 6-ll-20(b)(3). “Wantonness” has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994).’
“This Court has often reiterated that while ordinary negligence involves inadvertence, wantonness requires a showing of a conscious or an intentional act. Scott v. Villegas, 723 So.2d 642, 643 (Ala.1998); Newman v. Bankers Fid. Life Ins. Co., 628 So.2d 439, 443 (Ala.1993). However, ‘ “the actor’s knowledge may be proved by showing circumstances from which the fact of knowledge is a reasonable inference; it need not be proved by direct evidence.” ’ Scott v. Villegas, 723 So.2d at 643, quoting Hamme v. CSX Transp., Inc., 621 So.2d 281, 283 (Ala.1993).
“This Court has held that while speed alone does not amount to wantonness, speed, coupled with other circumstances, may amount to wantonness. Knowles v. Poppell, 545 So.2d 40, 42 (Ala.1989); Smith v. Cullen, 270 Ala. 92, 97, 116 So.2d 582, 586 (1959).”

Hicks v. Dunn, 819 So.2d 22, 24 (Ala.2001).

Martin knew the road conditions; he knew his speed when he opted to pass Hornady’s tractor-trailer truck; he knew that if he hydroplaned in the direction of the truck he would put Dorman, who was on the right side of the AEA vehicle next to the tractor-trailer truck, in harm’s way. There was sufficient evidence to allow the case to go to the jury against Martin and the AEA on the wantonness claim. Martin testified that he does not know what happened after the impact between the AEA automobile and the Hornady tractor-trailer truck. The exhibits and testimony indicate that the AEA automobile traveled sideways (with the right, or passenger’s side, of the automobile in front) in a northeastern direction across the northbound lane of the highway for approximately 60 feet and across the 50-fooi>-wide grass median for approximately 200 feet before it encroached on the southbound lane of traffic on 1-65.

Evidence of what Martin did before the impact with the Hornady tractor-trailer truck was sufficient to permit the trial court to submit the wantonness claim against Martin and the AEA to the jury; the trial court did not err in refusing to grant a new trial on the weight of the evidence.

The speed of the Hornady tractor-trailer truck, coupled with the weather conditions, the failure of the driver of the tractor-trailer truck to check his side-view mirrors, Martin’s testimony that without warning the tractor-trailer truck moved into the left lane and into the AEA automobile, was sufficient to permit the trial court to submit the wantonness claim against Hornady to the jury; the trial court did not err in refusing to grant a new trial on the weight of the evidence. Thrasher v. Darnell 275 Ala. 570, 156 So.2d 922 (1963).

Before the June 2000 collision, Martin had been cited for speeding six times since July 1996 and his driver’s license had been suspended once during that time. On all of those occasions, Martin was driving an AEA vehicle, and the AEA was notified of the violations. The AEA never provided Martin with any special driver’s training and never cautioned him about his driving. Clearly, Martin’s speed was a proximate cause of this accident. The trial court did not err in submitting the negligent-entrustment claim against the AEA to the jury. Mason v. New, 475 So.2d 854, 856 (Ala.1985).

We have carefully reviewed the eviden-tiary rulings that the defendants have challenged; we find no prejudicial error. See City of Birmingham v. Moore, 631 So.2d 972, 974 (Ala.1994); Sweeney v. Purvis, 665 So.2d 926, 930 (Ala.1995).

The jury awarded Don Meadows $2,000,000. Don’s attorney, in his opening argument, argued to the jury that Don’s compensatory damages were between $1,750,000 and $2,000,000. Hornady’s attorney admitted in closing argument: “The Meadows family is not at fault.... They are entitled to a substantial judgment.” The AEA and Martin’s attorney admitted in closing argument: “The Meadows family had no role in it.... They deserve to be compensated.... We accept our responsi-bility_We do not hide from our responsibility to the Meadows[ ] family.” The defendants did not question the amount of compensatory damages suggested by the plaintiffs’ attorney.

According to Don’s testimony, the trauma to Don and his family began when “all of a sudden ... [tjhere was a car in front of me and a collision.” Don felt around in the car after the crash to see if his wife and his son moved. “[I] didn’t hear them say anything, but I could tell they were alive. I guess I was in and out.” Don could “see a bone protruding out of [his] skin [on his arm], and the Jaws of Life cutting the door open.” He was “in and out, gasping for breath.”

The jury heard graphic details of Don’s injuries through videotaped depositions of his treating health-care providers, Dr. Raymond Fletcher, Dr. John McAtee, and Dr. Graham Howorth, and from his physical therapist, Mark Staples.

Don was initially taken to North Baldwin County Hospital. Dr. Fletcher, an orthopedic surgeon, testified that Don “had an open fracture of the left ulnar shaft” and “a subtalar dislocation and multiple metatarsal fractures of the right foot.” Don’s heel bone was also fractured. In addition to placing pins in Don’s foot, Dr. Fletcher put a metal plate in the forearm fracture to stabilize it. Don had a second surgery at North Baldwin on June 19.

On June 21, Don’s condition became critical when he went into respiratory distress; he was taken by ambulance to Mobile Infirmary. Don testified: “I just remember the ambulance drive and not being able to breathe and getting there and being rushed down the hallway and still having a tough time breathing.”

Dr. McAtee, the emergency-room physician on duty when Don arrived, described Don’s treatment when he arrived at Mobile Infirmary. When Don arrived, he was “semi-comatose to comatose, very confused, lethargic to agitated, variable behavior based primarily on his hypoxemia, low oxygen.” He was hyperventilating; he was in severe respiratory distress; and he was severely cyanotic, “which means blue color to the skin and to the lips and more importantly to the tongue, differentiating between central cyanosis ... as opposed to just the fingers or the extremities being blue.” “[I]t was apparent that he was about to arrest — have a cardiac and pulmonary arrest.” He “was in critical condition, life-threatening condition.”

Dr. McAtee intubated Don with a bron-choscope to visualize his lungs, to suction out any materials, and to assist Don’s breathing.

“A. [Dr. McAtee] And at the same time we began to ventilate him, we recognized ... he had a flailed chest, ... which is a particularly dangerous thing. So we immediately paralyzed him with an agent to give us total control of his ventilation so he would not have discordant ventilation....
“Normal people, when we inhale, the chest gets bigger, it expands, in a uniform fashion. When [Don] would inhale, his sternum would cave in the opposite direction.
“Q. And what did that indicate to you, Doctor?
“A. That means that he had a separation of the sternum from his ribs and — so there’s no way really to get proper gas exchange if you have a flailed chest.
“Q. By separation, is that fracture?
“A. Fractures, right.
“So when he inhales, the sternum would suck in abnormally instead of moving out. He also had some lateral rib fractures that caused the problem as well.”

Don had pleural and pericardial effusions, and pulmonary contusion. Even though when Don arrived at Mobile Infirmary he was wearing a rebreather mask that supplied three times the normal amount of oxygen, his oxygen saturation was in the 50s; normal saturation is about 95, and a medical alarm will sound when saturation drops to 90. His symptoms constituted adult-respiratory-distress syndrome, ARDS. Dr. McAtee testified that “a patient with ARDS with the extent [Don] had, [their] mortality is 75% with a 25% chance of survival. And of those 25 that survive, probably half of them have permanent lung damage.”

Dr. McAtee testified that Don’s lung function will probably be impaired. He noted that “no question, he would have died” had Don not received emergency care at Mobile Infirmary. Dr. McAtee testified:

“A. He’s very lucky to have survived. When you see this many patients with this problem and the way he looked when he hit the [emergency-room] door, I thought he was going to arrest and die right there in the emergency room.
“Q. Did you, of course, warn Sandy and the family of his condition?
“A. Correct.”

Dr. Graham Howorth treated Don after his eventual return to his home in Alexander City. He testified that the types of fractures that Don suffered “are much more severe ... [because they are] in the weight-bearing portion of the foot ... where it causes severe arthritis with pain, limp and disability.” Dr. Howorth testified that while he was treating Don, “He had moderate to severe episodes of pain, a lot of swelling.” As to Don’s limitations:

“From his foot, he has a severe an-talgic gait, which means he walks with pain. He really can’t carry anything— you know, he can’t carry anything more than a few feet.... I don’t think he could really stand more than four to six hours in a day total at the very best. The pain may not allow him to do that. I don’t think he can climb. I don’t think he can accommodate unlevel surfaces.”

Don is likely to walk with a limp for the rest of his life. Dr. Howorth testified that Don has a 22% impairment to the whole body, “excluding his chest injuries.” “And a large — majority of that is due to his severe injury to his foot with injuries to his midfoot, his forefoot with angulation which causes him to have a severe antalgic or painful limp.” Dr. Howorth also testified that Don will probably need additional surgeries on his foot.

When Don was released from the hospital on July 2, he went to his sister-in-law’s house, where he stayed until mid- or late August. He explained, “They just had to wait on us hand and foot, you know. We had hospital beds in there.” At first he was bedridden, then he was able to use a wheelchair, then a walker, later a crutch, and finally a cane. He had more than 15 or 20 physical therapy sessions.

In the 25 years before this accident, Don had not missed any long periods from work as a manager at Russell Corporation in Alexander City. November 1 (137 days after the accident) was the first day he was able to return to work, but he could not work six- to eight-hour days until February 1 and he was still required to take time off for physical therapy appointments. He was still working light duty at the time of trial. As of the date of trial there were things he could not do at work. The Russell Corporation plant is large, and Don’s job is to monitor stock coming in, which requires him to walk up and down stairs and to walk longer distances than he can now comfortably walk.

Don’s medical expenses totaled $110,715.13.

Before this accident, Don had an active life: he ran, played tennis, played softball, and hunted. He will never be able to run again. He takes pain medication for his foot, which he says helps for three or four hours by numbing the pain.

Sandra testified as to the extent of Don’s suffering. She testified that Don still uses a bench in the shower because he cannot stand on his right leg to balance himself. Don cannot walk barefoot because of the sensitivity on the bottom of his foot. Sandra explained that her husband is not a complainer and that he does not display his feelings, but that the constant pain has been too much for him to suffer in silence:

“[Sjometimes the pain has been so bad that naturally there is just so much you can take before you do express some sort of emotion over it, because it’s frustrating to go week after week, you know, in constant pain. If the pain were just located in one place, maybe mentally you could deal with it, but to have several places hurting at one time and then your other family members, you want to feel and be sympathetic for them, too, but we were just all three in this thing together.”

This testimony supports the compensatory damages the jury awarded Don because it shows his physical and mental suffering from his own injuries and from witnessing the suffering of his family members, who were in the accident with him (see Daniels v. East Alabama Paving, Inc., 740 So.2d 1033, 1049 (Ala.1999)). Don has watched Sandra go through “a lot of agony_ [SJhe’s not like she was.”

Don has a life expectancy of 29 years and 2 months, and the jury could have found that he faces a future of constant, ubiquitous pain.

The jury awarded Sandra Meadows $1,000,000. Sandra’s attorney argued to the jury that Sandra’s compensatory damages were between $750,000 and $1,000,000. The defendants’ attorneys did not argue that those amounts were excessive, but as set out before the discussion of Don’s injuries, admitted that each of the Meadowses was entitled “to be compensated”; the defendants’ attorneys stated that each of them was “entitled to a substantial amount.”

After the accident, Sandra was conscious briefly and remembers only that Don was feeling around for her and Chantz and asking if she and Chantz were alive. The next thing she remembers is lying on a table in the emergency room with a large ice pack on her face. She felt someone touch her shoulder, and realized that her sister and her brother-in-law had arrived. “When [my sister] saw my face, she had to leave the room and go be sick, I guess, because of all the bruising and swelling and my lips were busted.”

Sandra’s injuries and care were also explained through videotaped depositions of her health-care providers, Dr. Raymond Fletcher and Dr. Graham Howorth, and her physical therapist, Mark Staples.

When Dr. Fletcher saw Sandra in the emergency room on June 16, she had fractured ribs on her right side and a pelvic fracture. She had a fracture of the ischi-um, a fracture of the pubis, and a fracture of the sacrum and coccyx. She also had posthemorrhagic anemia, which is caused by blood loss from the injury itself. She suffered a cerebral concussion with a loss of consciousness at the scene. Her pelvic fractures required bed rest and then the use of a wheelchair for approximately six weeks.

Dr. Howorth saw Sandra in Alexander City on June 27, 2000. “She had moderate to severe right leg pain and left inguinal or groin pain.” There was “a lot of moisture [in her lung] that doesn’t allow proper oxygenation.” She also had fluid between the chest well and the lung itself. She had sciatica in her right buttocks and leg. She had an enlarged disc in her lumbar spine between vertebrae L4 and L5.

Sandra also had major shoulder surgery. She had persistent pain and weakness in her right shoulder from a complete tear of her supraspinatus muscle; because the shoulder damage was unresponsive to conservative measures, she had arthroscopy and a rotator-cuff reconstruction on October 19, 2000. The arm was then semi-immobilized for about six to eight weeks, and her motion and activities were limited for a period after that.

Dr. Howorth determined that Sandra had a 12% permanent impairment to her whole body as a result of the injuries she suffered in the accident.

Sandra was initially treated at North Baldwin County Hospital and was then released on June 21 to the care of her sister. As she was preparing to leave the hospital, she learned that hér husband’s condition had taken a turn for the worse. She “got somebody to roll my wheelchair in there, so I could see him. And in about three minutes, they were just pushing us aside and rushed out with him.” Sandra testified that the doctors told her that Don had only a 50-50 chance of surviving and “made me aware of how close Don was to leaving this world.”

Sandra was taken to her sister’s house. She had to be confined to bed for six weeks; therefore, she could not be with Don at Mobile Infirmary while he was in critical condition. “Chantz was in a wheelchair with two casts up to his.knees and he had chest pain, although he didn’t have broken ribs, and then all the disabilities that I had, it was impossible [to be with Don], as bad as we wanted to go.”

Sandra had not had any low-back problems before the accident, but she now has a herniated disc in her lower back.

“Q. What kind of problem ... physically, do you have now as a result of the wreck?
“A. [Sandra] Well, I still have shoulder pain from the rotator-cuff surgery and severe back pain and leg pain, like this week sitting in these hard chairs or riding for a long distance or standing too long in the same position. The main thing, I think, is from that sciatic nerve.
“Q. The nerve that the doctor said runs down here near where you have the fracture?
“A. Right.”

Sandra had 18 physical therapy sessions. She was given exercises to do at home also.

Sandra’s medical bills totaled $29,090.64. Dr. Howorth also testified that Sandra, like Don, may need surgery in the future to relieve the pain she experiences from her herniated disc.

Sandra’s job as a stylist for the fabric division of Russell Corporation was jeopardized by the physical consequences of the accident. As a fabric designer for career apparel garments, she has to travel, carrying a sample case, and “there is no way [she] can lift anything like that over my head any more,” which she has to do when she carries her sample case onto an airplane. Sandra did not return to work after the accident in June until the second or third week in August; at that time she started working for four hours a day. After the rotator-cuff surgery, she was out of work at least four weeks and she then returned only for half-days.

Sandra testified as to the impact of this collision on her family’s day-to-day routine. Her son Chantz cannot play sports anymore. Although Don had never suffered from depression, he has shown signs of depression since the accident. The family can no longer enjoy events like stock-car races and college football games, because Don cannot walk the distances necessary to attend those functions. Don has expressed frustration when he cannot do things that a normal 48-year-old ought to be able to do. He cannot climb a ladder to change lights or to clean gutters. He cannot do much work in the yard because there is little level ground on their lot for him to walk on. They live on Lake Martin, and Don used to enjoy water skiing, but he cannot do that anymore.

Sandra’s life expectancy is 38 years and 6 months. The jury could reasonably infer that she will be physically limited and in pain for the remainder of her life as a result of this accident.

The jury awarded Chantz Meadows $1,500,000. Chantz’s attorney argued to the jury that he should be awarded compensatory damages of $1,000,000 to $1,500,000. The defendants’ attorneys did not argue that those amounts were excessive, but as noted earlier, admitted that each of the Meadowses was entitled “to be compensated” and that each of them was “entitled to a substantial amount.”

Dr. Fletcher, Dr. Howorth, and Mark Staples testified by videotaped deposition as to Chantz’s injuries. Dr. Fletcher described Chantz’s initial injuries as follows:

“He had a fracture of the right ankle on the inner side called the medial malleo-lus and it was nondisplaced — or mildly displaced and [I] just placed him in a cast. He had a dislocation with fracture of the left ankle and a closed reduction and was placed in a cast at that time.”

His left ankle had a dislocation of the talus and he had a fracture of the fibula. The injury tore the deltoid ligament and “disrupted all of the soft tissue, ligaments, tendons, [and the] joint capsule.”

Dr. Howorth saw Chantz in Alexander City on June 27, 2000, and identified fractures in both ankles. The injuries to Chantz’s ankles constitute a 14% impairment to the whole body. According to Dr. Howorth, “That’s a permanent impairment.” Chantz also will need further surgery. He will have post-traumatic arthritis. Mark Staples testified as to the “restrictions and weakness” Chantz would suffer as a result of the injury to his left ankle.

At the time of the accident Chantz was a student at Jacksonville State University. He is not in school now, but he plans to finish his college degree. He cannot run, jump, climb, or walk long distances, or do things he liked to do before the accident. He still has a lot of soreness when he walks. If he missteps, his foot hurts, and it swells. His doctor has ordered him not to lift more than 25 pounds. Before the accident, he was in a fraternity and played on the fraternity’s softball team and soccer team. He can no longer play softball or soccer.

Chantz was an active, healthy 23-year-old young man at the time of the accident. He will never be able to run, jump, or climb again, or carry more than 25 pounds, because of the severe injury to his left foot and leg. The jury could have reasonably inferred that the injuries Chantz suffered as a result of the accident will seriously adversely affect the quality of his life for the remainder of his life, estimated to be 50 years and 2 months.

The jury awarded Dorman $1,750,000. Dorman’s attorney in his opening argument argued to the jury that she should receive between $1,750,000 and $2,000,000 in compensatory damages. The attorneys for the defendants did not argue that those amounts were excessive.

Dorman has a life expectancy of 26 years. She had incurred $80,285.99 in medical expenses and lost wages of $9,604.71 before trial. She was able to return to work by working at home. There was evidence indicating that she was permanently injured and that she will incur additional future care expenses of $257,966 as a result of the accident.

Dorman has no memory of what happened after the impact with the Hornady tractor-trailer truck until she woke up in Mobile Infirmary a number of days later. Dorman was compressed in the passenger compartment; the exterior of the automobile had collapsed by 18 to 20 inches on top of her. A paramedic testified that he was unable to obtain a blood-pressure reading from Dorman at the scene. She was taken to North Baldwin County Hospital and was immediately transferred by helicopter to Mobile Infirmary because her condition was critical. Dorman’s right femur was driven through her right hip socket, shattering the hip socket as well as numerous bones in her pelvic girdle. The injury was so severe that initially surgery was not a possibility, so a hole was drilled through Dorman’s shin bone and she was placed in traction for six weeks, during which time she was told that she might never walk again.

For six months (June to January), Dor-man was in virtually constant pain. She suffered extreme groin pain, hip pain, and pain as a result of traumatic arthritis. Her right leg was shorter than her left leg. In January, Dorman had a complete hip replacement, which was graphically described by Dr. William Bose in a videotaped deposition that was played for the jury. It will be necessary for Dorman to have at least one more hip replacement during her lifetime.

The rules governing a trial court’s review in determining whether a jury’s verdict for compensatory damages is excessive are clear:

“A trial court may not substitute its judgment for that of the jury when the jury has returned a compensatory verdict that is clearly supported by the record.... ‘A trial court may not conditionally reduce a jury verdict merely because it believes the verdict overcompensates the plaintiff; ... nor may the trial court substitute its judgment for that of the jury.’
“... When there is no evidence before the court of any misconduct, bias, passion, prejudice, corruption, improper motive, or cause not consistent with the truth and the facts, there is no statutory authority to invade the province of the jury in awarding compensatory damages.”

Pitt v. Century II, Inc., 631 So.2d 235, 239-40 (Ala.1993).

A review of compensatory damages on the grounds of excessiveness must focus on the plaintiff (as victim) and ask what the evidence supports in terms of the harm suffered by the plaintiff, viewing the evidence from the plaintiffs perspective.

A Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), hearing is not required in cases involving only compensatory damages. Pitt v. Century II, Inc., 631 So.2d at 238.

This case was tried by competent counsel before a competent judge. Each of the plaintiffs sustained serious life-threatening injuries that were also life-changing injuries, and the jury could have found that those injuries resulted from the combined negligence and wantonness of the defendants. The plaintiffs’ attorneys, without objection or dispute from the defendants, placed a value on the plaintiffs’ injuries; the jury agreed with the attorneys and awarded the maximum amount requested by the Meadowses’ attorneys and the minimum amount requested by Dorman’s attorneys. During closing arguments, the defendants did not challenge the figures presented by the plaintiffs as representing their compensatory damages. It seems like a contradiction for the defendants to now argue that the evidence would sustain substantial awards of damages for physical and mental suffering and impairment, but not so substantial as the amounts awarded. The size of the verdicts clearly did not shock the conscience of the trial court, who during the hearing to supplement the record, observed in regard to the excessiveness argument: “To me, based on what happened in this case, ... the only thing I can say is I don’t know how the Defendants can [challenge the amounts] with a straight face.”

There have been cases in which the plaintiffs suffered little or no physical injury and this Court has reduced the compensatory awards. In most such cases, the evidence of injury was at most a questionable diminishment of joie de .vivre. These cases, however, are different. The judgment of the trial court is affirmed.

AFFIRMED.

MOORE, C.J., and LYONS, HARWOOD, and WOODALL, JJ., concur.

      . Johnson was originally named as a defendant, but he was voluntarily dismissed by all the plaintiffs during the trial of the case.

      . Martin and the AEA's brief to this Court indicates that he had been ticketed for speeding seven times in that period.


source: Caselaw Access Project

author: HARWOOD, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    AmSOUTH BANK v. Leffie Terrell DEES III and Yvette Dees.
    1010361.
    Supreme Court of Alabama.
    Oct. 4, 2002.

      Edward A. Dean and Mary Carol Ladd of Armbrecht Jackson, LLP, Mobile, for appellant.
    James Lynn Perry of Daniell, Upton, Perry & Morris, P.C., Mobile, for appel-lees.
   HARWOOD, Justice.

I. Procedural History

On June 26, 2001, Leffie Terrell Dees III and Yvette Dees sued AmSouth Bank and Countrywide Home Loans, Inc., asserting claims of breach of contract, breach of fiduciary duty, unjust enrichment, fraud, suppression, deceit, negligence, wantonness, and conspiracy, allegedly arising from the wrongful handling of a mortgage loan. On August 23, 2001, AmSouth filed a motion to compel arbitration of the Deeses’ claims on the basis that two agreements between it and them — a “Customer Agreement for Depository Account,” associated with a checking account the Deeses opened on June 11, 1992, and a April 16, 1996, “AmSouth Equity Line of Credit Agreement” — contained arbitration clauses applicable to the dispute. On September 10, 2001, the Deeses filed their “Response and Objection to Defendant, AmSouth Bank’s Motion to Compel Arbitration and Defendant, Countrywide Home Loans, Inc.’s Joinder In Same and Motion to Strike” (hereinafter referred to as the “response”). On October 12, 2001, the trial court heard oral argument on Am-South’s motion to compel arbitration and, at the conclusion of the hearing, denied it both orally and by a terse entry on the case action summary stating “October 12, 2001 — DENIED.” On October 17, 2001, the court entered an order on the case action summary stating that Countrywide’s joinder in seeking to compel arbitration was likewise denied. On November 9, 2001, AmSouth filed a notice of appeal from the denial of its motion. We reverse the order denying AmSouth’s motion to compel arbitration and remand the cause.

II. Factual History

On February 4, 1994, the Deeses mortgaged their home to AmSouth Mortgage Company, Inc., to secure a 20-year loan in the amount of $55,090 (that mortgage is hereinafter referred to as “the first mortgage”). AmSouth Mortgage is not a party to this action. The mortgage documents provided for an annual interest rate of 7%. Neither the mortgage nor the underlying promissory note contained an arbitration clause. On October 31, 1994, AmSouth Mortgage assigned the mortgage to Countrywide.

On April 16, 1996, Mr. Dees entered into an “AmSouth Equity Line of Credit Agreement” (hereinafter referred to as the “credit agreement”) in connection with obtaining a $15,000 line of credit. Although Mrs. Dees did not sign the credit agreement, she did sign a contemporaneously executed document captioned “Opening an AmSouth Equity Line of Credit Account”; that document identified her as an “account holder.” The document stated in its introduction that “[AmSouth has] agreed to establish an open-end account for you ...,” and went on to explain her right to cancel the account upon taking certain steps. In describing this particular transaction in their complaint, the Deeses state the following: “On April 16, 1996, the Plaintiffs took out a home equity fine of credit with AmSouth. Plaintiffs borrowed money on this line of credit.” (Emphasis supplied.) The Deeses were given “special checks” to use to obtain advances from the line of credit. The credit agreement stated, in pertinent part:

“Section 2: How AmSouth Equity Line of Credit Checking Works. We will give you a supply of Special Checks. You authorize us to use the signatures on this Agreement in order to identify the signatures on your Special Checks. You may use a Special Check from time to time to obtain an Advance under your Account. A Special Check drawn on your account is a loan from us to you from the time it is posted to your Account, and you will owe us for the amount of the Special Check plus the applicable periodic finance charge.... We will be obligated to make Advances to you to pay Special Checks that comply with the terms of this Agreement up to the amount of your credit limit unless one of the events of default described in Section 20 of this Agreement has occurred.”

Section 33 of the credit agreement contains an arbitration clause, which states, in pertinent part:

“Section 33: Arbitration. [A]ny controversy, claim, dispute, or disagreement arising out of, in connection with, or relating to this Agreement or your Loan shall be settled by arbitration in accordance with the then-current applicable Rules of the American Arbitration Association. ... You and we specifically acknowledge and agree that this Agreement evidences, and your Loan is, a ‘transaction involving commerce’ under the Federal Arbitration Act, and you and we hereby waive and relinquish any right to claim otherwise.”

The line of credit was secured by a second mortgage of the same date on the Deeses’ home, signed by both Mr. and Mrs. Dees. The mortgage document did not contain an arbitration clause. The annual interest rate of the line of credit was 1.5% above prime, which, at the time the agreement was executed, translated to an annual interest rate of 9.75%.

Mr. Dees subsequently requested an increase in the line-of-credit limit, and on June 10,1997, he and Mrs. Dees signed an “Amendment to Adjustable-Rate Line of Credit Mortgage” (hereinafter referred to as the “amended second mortgage”). Am-South increased the line of credit from $15,000 to $20,000. Subsequently, as the Deeses state in their complaint, “[b]y March 2001, ... the Deeses had fallen behind on the Equity Line.” On March 13, 2001, AmSouth purchased the Deeses’ first mortgage from Countrywide and increased the amount owing under the Deeses’ line of credit to $72,352.20. This amount reflected the addition of $51,210.74 that Am-South had paid Countrywide for the assignment of the first mortgage. AmSouth proceeded to charge the Deeses interest based on the higher interest rate applicable to the line of credit, instead of the 7% interest rate of the first mortgage. Am-South did not seek the approval of the Deeses for that course of action.

III. Standard of Review

The issue in this case is whether the trial court erred in denying AmSouth’s motion to compel arbitration of the Deeses’ claims.

Our standard of review of the denial of a motion to compel arbitration is settled:

“Our caselaw holds that an appeal is the appropriate method for challenging a trial court’s denial of a motion to compel arbitration. See A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). This Court’s review of a trial court’s refusal to compel arbitration is de novo. See Ex parte Warrior Basin Gas Co., 512 So.2d 1364, 1368 (Ala.1987).”

Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999).

IV. Requirement of Effect on Interstate Commerce

Section 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, provides in pertinent part:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Section 2 preempts conflicting Alabama law, including in particular Aa.Code 1975, § 8-1-41(3), which states that “[a]n agreement to submit a controversy to arbitration” cannot be specifically enforced.

However, the FAA applies to render enforceable a predispute arbitration agreement only if the contract containing the agreement, or the transaction the contract evidences, “substantially affects interstate commerce.” Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 766 (Ala.2000); accord Equifirst Corp. v. Ware, 808 So.2d 1, 4 (Ala.2001). The party moving to compel arbitration has the burden of proving that the contract in question evidences a transaction substantially affecting interstate commerce. Chesser v. AmSouth Bank, 846 So.2d 1082 (Ala.2002). Undertaking to carry that burden, AmSouth supported its motion with affidavits from four of its officers: a vice president serving as manager of its equity loan center; a senior vice president serving as wholesale funding manager; a senior vice president serving as manager of electronic banking; and a senior vice president serving as manager of deposit operations. Collectively, those affidavits set forth the following information concerning the effects of the equity-line-of-credit transaction on interstate commerce:

“[1.] In connection with its decision on Mr. Dees’s application for the Equity Line of Credit, AmSouth obtained a credit bureau report from Equifax, Inc. (‘Equifax’). On information and belief, Equifax is a Georgia corporation with its principal place of business in Atlanta, Georgia.
“[2.] For AmSouth to approve the application for the Equity Line of Credit and the credit limit increase on same, AmSouth required proof that the residential real property pledged as security for the loan was insured. Proof of insurance was attached to the original Application and the Application for the Credit Limit Increase, indicating that the real property securing the loan was insured by State Farm Fire and Casualty Company. On information and belief, State Farm is an Illinois corporation with its principal place of business in Bloomington, Illinois.
“[3.] AmSouth purchased a title insurance policy in connection with the Equity Line of Credit Agreement and the Adjustable Rate Line of Credit Mortgage. This title insurance policy was issued by Commonwealth Land Title Insurance Company. On information and belief, Commonwealth is a Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania. [The copy of the policy attached as an exhibit to the affidavit in question states that Commonwealth is ‘a Pennsylvania corporation.’]
“[4.] In connection with the Dees Equity Line of Credit, AmSouth obtained a flood data certification with respect to the real property securing the loan. This flood data certification was provided by First American Flood Data Services, Inc. On information and belief, First American is a Texas corporation with its principal place of business in Austin, Texas. [The copy of the flood-data certification attached as an exhibit to the affidavit in question lists the address of First American as 11902 Bur-net Road, Austin, Texas 78758.’]
“[5.] A substantial portion of the accounting and billing functions for the Dees Equity Line of Credit Account are performed by Total System Services, Inc. (‘TSYS’). On information and belief, TSYS is a Georgia corporation with its principal place of business in Columbus, Georgia. The statements for the Dees Equity Line Account are printed and mailed by TSYS in Columbus, Georgia. The computer hardware and software used by TSYS to perform accounting and billing functions for the Dees and other equity line accounts are physically located in Columbus, Georgia.
“[6.] The existence of a prior mortgagees) and the remaining principal balance on same are important factors in AmSouth’s decision regarding whether to loan money to a customer on an equity line of credit. At the time of the application for the Equity Line of Credit, Countrywide was the owner of the First Mortgage on the Dees residence. On information and belief, Countrywide is a New York corporation with its principal place of business in Calibasas, California. Countrywide also has offices in the State of Texas. On his application for the Equity Line of Credit, Mr. Dees listed Countrywide as the owner of the First Mortgage on his house, and gave an address for Countrywide in the State of Texas. [In the ‘Assignment of Mortgage’ whereby AmSouth Mortgage transferred the first mortgage to Countrywide, the mailing address for Countrywide is stated as ‘400 Countrywide Way, Simi Valley, Ca. 93065-6298.’ In a counterclaim Countrywide filed against the Deeses it identified itself as ‘a corporation organized and existing under and by virtue of the laws of the State of New York, with its principal place of business located in California.’]
“[7.] AmSouth’s equity line of credit portfolio (the ‘Equity Lines Portfolio’) is composed of the equity lines of credit made available by AmSouth to individual borrowers. The Equity Line of Credit made available by AmSouth to Leffie T. Dees, account number [account number omitted], is included in the Equity Lines Portfolio.
“[8.] The Equity Lines Portfolio is funded in part by retail deposits made at AmSouth branches in all states where AmSouth branches are located. Am-South has branches in Alabama, Florida, Georgia, Louisiana, Mississippi and Tennessee.
“[9.] The Equity Lines Portfolio is funded in part by wholesale borrowings by AmSouth. AmSouth makes wholesale borrowings from a number of sources outside the State of Alabama, including, for example, the Federal Home Loan Bank of Atlanta, Georgia (‘FHLB of Atlanta’).
“[10.] AmSouth periodically pledges portions of the Equity Lines Portfolio to the FHLB of Atlanta as security for wholesale borrowings made by AmSouth from the FHLB of Atlanta. The Dees Equity Line of Credit is among the loans that AmSouth has pledged to the FHLB of Atlanta.
“[11.] With respect to many types of accounts, AmSouth offers its customers the ability to perform banking transactions electronically. AmSouth customers must apply to use electronic banking. AmSouth uses one system to process all electronic banking transactions on its customer accounts. Am-South’s electronic banking system may be accessed by telephone, through the Internet, or through a PC Banking dial-up service. Each of these methods requires the use of telephone lines to transmit data. When the PC Banking dial-up service is used, the customer accesses the system using a personal computer and modem to dial a 1-800 telephone number provided by AmSouth.
“[12.] On at least four occasions in the past two years, [preceding September 19, 2001] electronic banking transactions were performed in connection with the Dees Home Equity Line of Credit, Account Number [account number omitted]. For each of these transactions, the customer accessed the AmSouth electronic banking system using PC Banking (i.e., via a personal computer and modem). The customer used telephone lines to perform these transactions.
“[13.] Electronic banking transactions posted to the Dees Home Equity Line Account on September 24, 1999, March 2, 2000, and May 8, 2000. Each of these three transactions represents a withdrawal of funds from the Dees Equity Line Account, and a transfer of those funds to AmSouth checking account number [account number omitted], which checking account is owned by [Mr.] Dees.
“[14.] On May 8, 2002, a fourth electronic banking transaction posted to the Dees Home Equity Line of Credit account ... which was a payment in the amount of $500.00. This payment to the Dees Home Equity Line of Credit account was made by an electronic transfer of funds from AmSouth checking account number [account number omitted], which checking account is owned by [Mr. and Mrs.] Dees and Virginia B. Secrest.”
The Deeses did not object to, or move to strike, any of these assertions, and they did not offer any evidentiary submissions of their own.
V. The Scope of the Arbitration Clause in the Credit Agreement: Identifying “the Controversy” and “the Transactions. ”

Pursuant to the express language of Section 2 of the FAA, only a controversy that arises out of the transaction in question can be forced to arbitration. The Deeses state in their brief that “it is nonsensical to contend that [their] present claims arise out of, are in connection with, or relate to the Equity Line,” i.e., the credit agreement and the transaction it evidenced. The Deeses argue that the “Equity Line was just the vehicle used by AmSouth to wrongfully change the terms of the Dees/AmSouth First Mortgage.” They cite Koullas v. Ramsey, 683 So.2d 415, 417 (Ala.1996), for the proposition that “this Court will not stretch the language of a contract to apply to matters that were not contemplated by the parties when they entered the contract.” They then assert that they “could not have contemplated in their wildest dreams the March 2001 manner in which AmSouth would use the Equity Line by increasing the Equity Line principal by $51,210.74 to purchase the [Deeses’] First mortgage from Countrywide.” In Koullas the arbitration clause extended only to “disputes between the parties arising under this Agreement,” 683 So.2d at 417 (emphasis omitted); this court explained the effect of that limitation as follows:

“Where, as here, an arbitration clause refers to disputes or controversies ‘arising under’ an agreement, the clause will apply only to those claims arising under the terms of the agreement, and it will not extend to matters or claims independent of, or merely collateral to, the agreement. Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala.1994). We agree that, in order for a dispute to be characterized as arising out of or relating to the subject matter of the contract, and thus subject to arbitration, it must at the very least raise some issue that cannot be resolved without a reference to or construction of the contract itself. Dusold v. Portco-John Corp., 167 Ariz. 358, 807 P.2d 526 (Ct.App.1990); Terminix Int’l Co., L.P. v. Michaels, 668 So.2d 1013 (Fla.Dist.Ct.App.1996); Greenwood v. Sheffield, 895 S.W.2d 169 (Mo.App.1995). If there is no such connection between the claim and the contract, then the claim could not reasonably have been intended to be subject to arbitration within the meaning of a clause that required arbitration only for claims ‘arising out of or related to’ the contract. Dusold.”

683 So.2d at 417-18.

Because in Koullas this Court was called upon to construe only the phrase “arising under this [ajgreement,” observations made in that opinion concerning the construction to be accorded to the different phrase “arising out of or relating to” an agreement were technically dictum. Certainly our caselaw on point as to that latter phrase has distinguished it from the former and has assigned to Koullas its proper role as commenting on only the former. For example, in Ex parte Cupps, 782 So.2d 772 (Ala.2000), this Court stated in a footnote:

“After making this statement [the statement being the passage from Koul-las set out above except for its last sentence], the Court in Koullas continued: ‘If there is no such connection between the claim and the contract, then the claim could not reasonably have been intended to be subject to arbitration within the meaning of a clause that required arbitration only for claims “arising out of or related to” the contract.’ 683 So.2d at 418. This particular statement, however, is dictum in that the arbitration clause in that case did not include the language ‘arising out of or related to.’ Thus, while it would appear from this sentence that the term ‘arising out of or related to’ receives the same construction as ‘arising from’ and ‘arising under,’ our cases clearly treat these two classes of terms differently. See Reynolds & Reynolds Co. [v. King Autos., Inc.], 689 So.2d [1] at 2-3 [ (Ala.1996) ].”

782 So.2d at 776-77 n. 1. See also Birmingham News Co. v. Lynch, 797 So.2d 440, 444-45 (Ala.2001), summarizing the holding in Koullas as being that an “arbitration clause referring to disputes or controversies ‘arising under’ an agreement applies only to those claims arising under the terms of the agreement, and does not extend to matters or claims independent of, or merely collateral to, the agreement.”

Subsequent to Koullas this Court has also pointed out that

“it is often observed that the words ‘relating to’ in the arbitration context are given a board construction. See Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999); Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1 (Ala.1996); Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala.1994).”

Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1013 (Ala.2001).

“This Court has held ... that the phrase ‘any controversy or claim arising out of or relating to’ in arbitration agreements covers a broad range of disputes.”

Vann v. First Community Credit Corp., 834 So.2d 751, 754 (Ala.2002). See also Beaver Constr. Co. v. Bakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (“‘relating-to’ language has been held to constitute a relatively broad arbitration provision”).

Likewise, in Bama’s Best Housing, Inc. v. Hodges, 847 So.2d 300, 303 (Ala.2002), we observed:

“[W]e have held that where a contract signed by the parties contains a valid arbitration clause that applies to claims ‘arising out of or relating to’ the contract, that clause has a broader application than an arbitration clause that refers only to claims ‘rising from’ the agreement. See Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1, 2 (Ala.1996)(citing Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala.1994)).”

(Emphasis omitted.) “The ‘arising out of language was not intended to cover matters or claims independent of, or collateral to, the contract.” American Bankers Life Assurance Co. v. Rice Acceptance Co., 709 So.2d 1188, 1191 (Ala.1998)(a three-Justice opinion, with two Justices concurring specially in such a way as to endorse this proposition). See also Ex parte Discount Foods, Inc., 789 So.2d 842, 845 (Ala.2001), and Ex parte Crisona, 743 So.2d 452, 456 (Ala.1999).

In Ex parte Messer, 797 So.2d 1079, 1082-83 (Ala.2001), we made the following observations about the proper interplay between state-law principles of contract interpretation and federal substantive arbitration law:

“ “When deciding whether the parties agreed to arbitrate a certain matter ..., courts generally ... should apply ordinary state-law principles that govern the formation of contracts.’ First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In applying general Alabama rules of contract interpretation to the language of an arbitration agreement subject to the FAA, this Court must, in accordance with the federal substantive law on arbitration, resolve any ambiguities as to the scope of the arbitration agreement in favor of arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (Section 2 of the FAA ‘create[s] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act’ and ‘establishes that, as a matter of federal law, any doubts concerning the scope of arbitra-ble issues should be resolved in favor of arbitration’). The FAA ‘simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms,’ and ‘parties are generally free to structure their arbitration agreements as they see fit.’ Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Accordingly, ‘as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitra-bility.’ ”

797 So.2d at 1082.

Where the parties have entered into a single written contact and a dispute thereafter develops between them directly arising out of that contract, the requirement in § 2 of the FAA that there be “a controversy thereafter arising out of such contract” is easily determined to have been satisfied. Likewise, the analysis is fairly straightforward as to the alternative provided by § 2 of “a controversy thereafter arising out of such ... transaction” when the contours of the “transaction evidenced by the contract” are distinct and the dispute that develops can confidently be said to arise out of it.

Where, however, the parties have entered into a succession of contractual dealings, extending over the course of several years and involving various “subtransac-tions,” identifying the “controversy” (or, to use the phrase in the arbitration clause at issue, the “controversy, claim, dispute, or disagreement”) and determining which, if any, of the contracts it arises out of (or, to use the phrase in the arbitration clause at issue, “arises out of, in connection with, or relates to”), can become problematic. Analyzing the connection and relationship between the subsequently arising controversy and the various earlier contracts and transactions requires first a determination of the nature of the controversy. (Hereinafter we may alternatively substitute “dispute” or “claim” for the FAA’s term “controversy,” given that the parties here use those first two terms in phrasing their arguments.)

Identification of the “transaction,” against the backdrop of a series of contracts and dealings, becomes a function of identification of the dispute. Until one knows what the dispute is, one does not have a frame of reference for analyzing the relationship, if any, between it and the parties’ prior transactions and dealings. Where, as here, the dispute has been articulated in a complaint filed to initiate a lawsuit, that statement by the plaintiffs of their claim or claims is essentially determinative, absent an amendment of the complaint or other types of formal submissions altering the statement of the claim or claims. Thus, in the litigation context, the plaintiffs have the opportunity, in the first instance, to define the dispute. They may pursue or forgo available claims as they see fit and select the factual underpinnings they deem pertinent to aver. In this case, the Deeses elected to include within the introductory factual averments of their complaint the following:

“6. On April 16, 1996, the [Deeses] took out a home equity line of credit with AmSouth. [The Deeses] borrowed money on this line of credit....
“7. After repurchasing the [Deeses’] mortgage from Countrywide on March 13, 2001, AmSouth rolled the mortgage into the [Deeses’] equity line of credit. Interest was charged at the higher interest rates and [the Deeses] were charged additional fees and expenses for this transaction.
“10. Thereafter, on or about June 1, 2001 [the Deeses] received a billing statement on his equity line of credit with AmSouth reflecting two payments of $51,210.74 leaving his account with a credit of $29,125.76....”

The Deeses then proceeded to state their claims arising out of those facts in the following counts, which included the following numbered paragraph averments:

II. Unlawful Conduct Alleged
“11. As a result of the unlawful conduct of [AmSouth and Countrywide] alleged hereinabove, [the Deeses] have been billed fees, expenses and interest they should not have to pay. The [Deeses’] credit is also being affected by [AmSouth and Countrywide’s] wrongful conduct.”
III. Breach of Contract
“13. Defendant AmSouth breached its contract with [the Deeses] by wrongfully combining [the Deeses’] mortgage loan into his equity line of credit thereby resulting in a higher interest rate and by wrongfully and unlawfully charging fees and expenses to the [Deeses] to complete the transaction. Defendant Countrywide breached its contract with [the Dees-es] by charging late fees, late payments and other charges on their mortgage after it sold the mortgage to AmSouth.”
IV. Breach of Fiduciary Duty
“15. Defendant AmSouth breached the fiduciary duty it owed to the [Deeses] by wrongfully combining [the Deeses’] mortgage loan into their equity line of credit thereby resulting in a higher interest rate and by wrongfully and unlawfully charging fees and expenses to the [Deeses] to complete this transaction. Defendant Countrywide breached the fiduciary duty it owed the [Deeses] by charging late fees, late payments, and other charges on their mortgage after it sold the mortgage to AmSouth.”
V. Unjust Enrichment
“17. It would be unfair and unjust for [AmSouth and Contrywide] to retain the monies wrongfully collected by them and same should be repaid to the [Deeses].”
VI. Fraud/Suppression/Deceit
“20. [AmSouth and Countrywide] conspired without the knowledge, permission and/or consent of the [Deeses] to sel the [Deeses’] loan with Am-South to Countrywide Home Loans and then instead of charging the [Deeses’] mortgage payments to said mortgage, combined the amount of the mortgage into the [Deeses’] existing line of credit, charged an increased interest rate as well as additional fees and expenses. AmSouth wrongfully suppressed these material facts from the [Deeses] at all times being under an obligation to communicate these material facts to the [Deeses]. The Defendant, AmSouth, concealed these material facts from the [Deeses] with the intent of deceiving and/or misleading the [Deeses]. Thereafter when the [Deeses] discovered this fraud, [AmSouth and Countrywide] sought to undo what they had done and Countrywide apparently purchased the loan back from AmSouth and began biling the [Deeses] and charging additional fees.”
VII. Negligence
“28. [The defendants engaged in neglgent conduct by]
“A. Neglgently combining the [Deeses’] mortgage into their equity line of credit.”
VIII. Wantonness
“26. [The defendants engaged in wanton conduct by]
“A. Wantonly combining the mortgage into the equity line of credit.”

As noted, the Deeses take the position that their claims have nothing to do with the credit agreement or the line-of-credit transaction it set in motion, but rather:

“This case is about the Deeses’ 20-year, 7% annual interest rate First Mortgage being unlateraly charged by a then Second Mortgage holder’s (AmSouth) purchase of the First Mortgage and ‘rolling’ it into the Deeses’ higher interest Equity Line.”

(Emphasis in original.) AmSouth takes the opposite position, arguing that “[w]hat is disputed in this case is whether Am-South had the contractual right to combine the First Mortgage and the Equity Line of Credit, when the Deeses were in default on the Equity Line.” AmSouth contends that it had that right.

Given the broad language of the arbitration clause (“any controversy, claim, dispute, or disagreement arising out of, in connection with, or relating to this Agreement or your Loan ”) (emphasis supplied) and the Deeses’ expansive statement of their claims in their complaint, we conclude that their dispute with AmSouth does in substantial part arise out of, relate to, and/or has a connection with, the credit agreement and the loan it gave rise to. Not only have the Deeses pleaded claims against AmSouth based on its alleged wrongful “rolling” of the first-mortgage loan into their line-of-credit loan, they have also alleged that AmSouth and Countrywide “conspired” to combine the amount of the first-mortgage indebtedness “into the Plaintiffs’ existing line of credit, charg[ing] an increased interest rate as well as additional fees and expenses.” We do not view our identification of the transaction to which the dispute relates under the facts of this case as an either/or situation, whereby the dispute can relate exclusively only to either the first-mortgage loan or the line-of-credit loan. The claims put forth by the Deeses relate in part to both of those loans and their contractual underpinnings. Even under the Koullas test, which, as noted, is rightly to be employed only with respect to those arbitration provisions that contain simply the basic phrase “arising under this agreement,” the dispute presented by the Deeses “raise[s] some issue that cannot be resolved without a reference to or construction of the [credit agreement] itself.” 683 So.2d at 418.

VI. Effect of Subject Transaction on Interstate Commerce

Having concluded that “the dispute” in this case has a sufficient nexus to the credit agreement and the loan transaction it evidences to be fairly said to arise out of, or in connection with, that transaction, or to relate to it, we now turn to an analysis of whether that agreement and/or transaction had a substantial effect on interstate commerce.

In Sisters of the Visitation v. Cochran Plastering Co., 776 So.2d 759 (Ala.2000), this Court listed factors to be considered in determining whether a transaction has had a “substantial effect” on interstate commerce. Those factors are: (1) the citizenship of the parties and any affiliation the parties have with out-of-state entities; (2) tools and equipment used in performance of the contract; (3) allocation of the contract price to cost of services and materials involved in performance of the contract; (4) subsequent movement of the object of the contract across state lines; and (5) the degree to which the contract at issue was separable from other contracts that are subject to the FAA. Id. at 765-66. In determining whether a transaction affects interstate commerce, the United States Supreme Court directs that we “considerQ the aggregate effects the transaction has on interstate commerce.” Tefco Fin. Co. v. Green, 793 So.2d 755, 759 (Ala.2001).

1. Citizenship of the parties and any. affiliation they might have with out-of-state entities

AmSouth does not dispute that the Deeses are Alabama residents, and it admits in its brief to this Court that it is “an Alabama state-chartered bank.” However, as previously noted, the Deeses’ complaint presents claims against both AmSouth and Countrywide, a foreign corporation, and asserts that various aspects of the transactions underlying their action involved Countrywide. As also noted earner, the Deeses’ complaint alleges breach of contract, breach of fiduciary duty, unjust enrichment, fraud, suppression, negligence, and wantonness by both AmSouth and Countrywide, stemming from the alleged wrongful handling of the mortgage loan and the line of credit. Importantly, the complaint alleges that a conspiracy between AmSouth and Countrywide to defraud the Deeses in connection with the transaction existed. The Deeses’ allegation of a conspiracy between Countrywide and AmSouth will necessitate an analysis of the business dealings between them in the subject transactions. Furthermore, the interrelated nature of the claims asserted against AmSouth and Countrywide in the complaint implicates the entirety of their relationship. Thus, the citizenship-of-the-parties factor, relating to Countrywide’s status, lends some support to an argument that the credit agreement evidences a transaction that substantially affects interstate commerce. It does not matter that Countrywide ultimately dismissed its appeal of the denial of its request for arbitration, because we consider only the record the trial court had before it, and Countrywide was a codefendant in the case at all times during the proceedings below.

2. Where the tools and equipment used at the project site originated; and

8. The intrastate versus interstate allocation of cost of services and materials involved in the project

Unlike Sisters of the Visitation, the transaction in this case does not involve any “tools and equipment.” This case involves the use of money and the creation of financial obligations. Although the nature of this case blurs the distinction between the consideration of “tools and equipment” and the “allocation of cost of services and materials” factors, AmSouth has provided evidence showing (1) that in determining whether to extend a line of credit to the Deeses, AmSouth obtained a credit bureau report from Equifax, Inc., a Georgia corporation with its principal place of business in Atlanta, Georgia; (2) that AmSouth required in connection with both the original line of credit and its later increase, proof of property insurance, which was provided in the form of a policy issued by State Farm Fire and Casualty Company, an Illinois corporation; (8) that AmSouth purchased a title insurance policy in connection with the credit agreement, and the amended second mortgage, which was issued by Commonwealth Land Title Insurance Company, a Pennsylvania corporation; (4) that AmSouth relied on proof of the existence of a prior mortgage and a statement of the remaining principal balance owing under it, provided by the Texas office of Countrywide, a New York corporation; (5) that in connection with the line of credit, AmSouth obtained a flood-data certification from First American Flood Data Services, Inc., a Texas corporation with its principal place of business in Austin, Texas; and (6) that the Deeses’ equity-line statements were printed and mailed to them by TSYS in Columbus, Georgia. We have previously held that the procurement of insurance coverages from out-of-state, as a reasonably necessary aspect of a transaction, is properly to be considered in evaluating that transaction’s impact on interstate commerce. Chesser v. AmSouth Bank, N.A., 846 So.2d 1082 (Ala.2002). Our consideration in this case of the “tools and equipment” factor and the “allocation of cost of services and materials” factor provides strong support for the conclusion that the credit agreement evidences a transaction that substantially affects interstate commerce.

4. Subsequent movement across state lines

AmSouth argues that the proceeds of a loan are “intrinsically mobile,” and that the equity line of credit, unlike a first mortgage, can be used to purchase goods and services in interstate commerce. AmSouth further argues that “on at least three occasions in the past two years, [the Deeses] transferred money electronically from the equity line of credit to a checking account ..., from which they could write checks to purchase goods and services in interstate commerce.” Although we agree that the proceeds of a loan are mobile, we reiterate our statement in Alternative Financial Solutions, LLC v. Colburn, 821 So.2d 981 (Ala.2001), that “[although we agree that loan proceeds — moneys—are ‘mobile,’ this language does not stand for the proposition that a loan transaction inherently triggers the FAA.” 821 So.2d at 986 (emphasis supplied).

AmSouth asserts that the Deeses used instrumentalities of interstate commerce to perform transactions with respect to the line of credit. In particular, affidavit testimony establishes the following:

“On at least four occasions in the past two years, electronic banking transactions were performed in connection with the Dees Home Equity Line of Credit.... For each of these transactions, the customer accessed the AmSouth electronic banking system using PC Banking (i.e., via a personal computer and modem). The customer used telephone lines to perform these transactions.”

Lastly, AmSouth argues that the equity line of credit was a substantial loan, starting at $15,000, extended to $20,000, and subsequently expanded to $72,352.20, in contrast with the loans in Colburn, which involved amounts of less than $300. Additionally, we recognize that AmSouth’s purchase of the Deeses’ mortgage from Countrywide, an out-of-state corporation, financed by a cash advance of $51,210.74 from the line of credit, is an aspect of the unfolding transactions that necessarily involved interstate commerce. Our consideration of the size of the funds and their movement across state fines provides further support for a conclusion that the credit agreement evidences a transaction that, in its totality, substantially affected interstate commerce.

5. The degree of separability from other contracts

As previously discussed, the Dees-es’ equity fine of credit is interrelated with other contracts. In Brown v. Dewitt, Inc., 808 So.2d 11 (Ala.2001), we stated:

“As noted by this Court in Sisters of the Visitation, the degree of interstate commerce involved in contracts related to the transaction at issue does not determine whether the transaction at issue substantially affects interstate commerce. However, if a finding that the transaction at issue falls outside the reach of the FAA would disrupt the performance of the related contracts or activities that are subject to the FAA, then the degree of interstate commerce involved in those related contracts is to be given greater weight. See Sisters of the Visitation, 775 So.2d at 766-67.”

808 So.2d at 14. Here, as in Brown, there is evidence of the procurement of insurance coverage, but, as previously mentioned, there is the additional evidence of a credit report, a flood-data certificate, and accounting and billing services necessary for creating and maintaining the Deeses’ fine of credit. Thus, we conclude that this final Sisters of the Visitation factor lends some support to a conclusion that the credit agreement evidences a transaction that substantially affects interstate commerce.

Giving due consideration to all of these circumstances, we conclude that AmSouth has shown that the aggregate effect of the credit-line transaction substantially involved interstate commerce.

VII. AmSouth’s Right to Compel Arbitration as to Mrs. Dees

Based on the findings and legal conclusions we have expressed thus far, it is clear that Mr. Dees, as a signatory to the credit agreement, is obligated to arbitrate the claims he has asserted against AmSouth. Whether Mrs. Dees is likewise obligated to submit her claims to arbitration requires further analysis.

As noted, she is not a signatory to the credit agreement, but she was a signatory to an associated document which identified her as an “account holder” as to the line-of-credit account. Also, as previously noted, Mr. and Mrs. Dees allege in their complaint that they took out the line of credit and that they borrowed money on it. Mrs. Dees, along with Mr. Dees, alleges a breach of contract in connection with Am-South’s “wrongfully combining Plaintiffs’ mortgage loan into his equity line of credit.” The rest of the claims and entitlements to damages are asserted equally on her and his behalf. In their brief to this Court, the Deeses take note of Mrs. Dees’s status as a nonsignatory only in passing, as follows:

“On April 16, 1996, the [Deeses] entered into an Equity Line of Credit Agreement (‘Equity Line’) with Am-South Bank which provided them with a $15,000 line of credit.

Nonetheless, we are obliged to consider her status because we “will affirm the trial court [as to Mrs. Dees] if its ruling is correct on any valid ground or rationale, even one rejected or not considered by the trial court.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999).

We conclude that Mrs. Dees must submit to arbitration her part of the claims she asserts jointly with her husband against AmSouth. The legal principles dictating that result were well stated in Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526-27 (Ala.2001):

“The first means by which [Mrs. Dees] could be forced to arbitrate her claims against [AmSouth] would be under a theory that she is a third-party beneficiary to the contract. This Court has on several occasions addressed the issue of when a nonsignatory to a contract can be bound by an arbitration agreement contained therein. In Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998), an employee sued, alleging negligence, wantonness, and breach of contract against the owner and operators of a loading facility; the trial court refused to enforce an arbitration agreement contained in the contract. This Court stated the general rule that ‘[i]t is ... clear that a third-party beneficiary cannot accept the benefit of a contract, while avoiding the burdens or limitations of that contract.’ 727 So.2d at 5. Because the plaintiff had specifically invoked the contract as a basis for his action, he could not avoid certain elements of the contract. Justice Shores, in her dissent, expressed the implicit holding of that case when she wrote that ‘the plaintiffs could have avoided arbitration by not amending their complaint to state a contract claim.’ Id. at 8.
“This Court had earlier analyzed the issue whether a third-party beneficiary could be compelled to arbitrate, in Ex parte Dyess, 709 So.2d 447 (Ala.1997). Because Dyess had sued upon a contract, this Court held that he could not avoid the arbitration clause found therein. We also noted that ‘ “[a] party claiming to be a third-party beneficiary of a contract must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.”’ Id. at 450 (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993)). See also Ex parte Stamey, 776 So.2d 85 (Ala.2000) (holding that the intent of the parties as expressed in the contract determines whether a nonsigna-tory is a third-party beneficiary).
“We recognize a second exception to the general rule that nonsignatories cannot be bound to arbitrate their claims: If a nonsignatory’s claims are ‘intertwined with’ and ‘related to’ the contract, arbitration can be enforced. See, e.g., Ex parte Napier, 723 So.2d 49 (Ala.1998); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993); Dunn Constr. Co. v. Sugar Beach Condo. Ass’n, Inc., 760 F.Supp. 1479 (S.D.Ala.1991).
“Our cases recognizing ‘intertwining claims’ as a basis for compelling arbitration have typically involved arbitration clauses broad enough to embrace intertwined claims ... and allegations of a conspiracy between the nonsignatory and the signatory to the arbitration agreement. See Ex parte Isbell, 708 So.2d 571 (Ala.1997).”

As similarly analyzed in Credit Sales, Inc. v. Crimm, 815 So.2d 540, 546 (Ala.2001), to the extent that Mrs. Dees “bases her claims on another party’s contract with the defendants,” she cannot “avoid the operation of the arbitration provision of that contract.... [S]he cannot pick and choose which contract provisions she wishes to have benefit her and reject those she does not wish to have bind her; instead, she must accept or reject the entire contract.” If Mrs. Dees were to take the position that she is not a party to, and is not bound by any of the terms of, the credit agreement, then she would have no standing to seek damages for the alleged wrongful increase of the indebtedness owing under that agreement or the increase of the interest rate. She does claim damages for those changes in the credit line established by that agreement, however, and therefore must accept the entire contract.

VIII. Unconscionability

We address finally the Deeses’ argument in their brief to this Court that the trial court’s order denying arbitration must be affirmed because the arbitration clause contained in the credit agreement is unenforceable as a matter of law, because, they say, AmSouth’s “conduct” was unconscionable. Unconscionability is a contract defense and does not apply to actions taken outside the ambit of a contract. The defense of unconscionability is codified in Ala.Code 1975, § 5-19-16, which provides:

‘With respect to a consumer credit transaction, if the court as a matter of law finds the contract or any provision of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable provision, or it may so limit the application of any unconscionable provision as to avoid any unconscionable result.”

See also Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779, 783 (Ala.2002) (“While it is true that a court may rescind a contract, or a portion of a contract, for unconscionability, “[r]e-scission of a contract for unconscionability is an extraordinary remedy usually reserved for the protection of the unsophisticated and uneducated.” ’ ”) (quoting Layne v. Garner, 612 So.2d 404, 408 (Ala.1992)).

In an attempt to place their unconscio-nability argument in a contract context, the Deeses contend that AmSouth, by increasing the amount owing under their line of credit, “unilaterally created a new contract, an Equity Line of Credit for $72,352.20.” They argue that this new, unilateral contract is unenforceable as unconscionable, and “as the contract is unenforceable then any arbitration clause would also be unenforceable.” We cannot agree that the credit agreement has been supplanted by a new contract, as opposed to allegedly having been breached by Am-South by its unilateral increase of the line-of-credit debt. (Of course, nothing we say in this regard reflects any opinion as to the merits of the dispute between the parties.) The Deeses assert in their complaint, and to this Court on appeal, that AmSouth had no authority to do what it did in connection with the way it handled its acquisition of the first mortgage, by allocating its acquisition cost to the line-of-credit indebtedness, whereas AmSouth asserts that its conduct in that regard was in all respects contractually authorized and proper. We have no need to consider the relative merits of those positions, being concerned at this stage only with the issue whether, as to the dispute so framed by the Deeses in their complaint, AmSouth is entitled to compel arbitration. Being of the opinion that the credit agreement survived intact the alteration of the indebtedness it evidenced, although the Deeses claim it was thereby breached, we likewise conclude that its arbitration clause survives.

There is an independent, and equally compelling, reason the Deeses cannot take advantage of the alleged “uncon-scionability”: they never raised it as an issue in the trial court. Neither in their response to AmSouth’s motion to compel arbitration nor at any other time during the proceedings below, at least insofar as is reflected in the record, did they assert unconscionability as a defense to Am-South’s demand for arbitration. “Uncon-scionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof.” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000). See also Conseco Finance v. Murphy, 841 So.2d 1241 (Ala.2002), and Vann v. First Community Credit Corp., 834 So.2d 751 (Ala.2002). (Of course, the burden to assert a defense shifts to the party opposing a motion to compel arbitration, only after the movant has properly supported the motion.) The Deeses having failed to raise in any way a defense of unconscionability in the trial court, they cannot now present it for the first time on appeal.

IX. Conclusion

For the reasons stated above, we reverse the order of the trial court denying AmSouth’s motion to compel arbitration and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, WOODALL, and STUART, JJ., concur.

SEE, J., concurs in the result.

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The FAA applies only if the particular contract which contains the arbitration agreement substantially affects interstate commerce. 9 U.S.C. § 1 and § 2; Alafabco, Inc. v. Citizens Bank, [Ms. 1010703, August 30, 2002] — So.2d - (Ala.2002); Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000); and Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999). The particular contract in this case is the equity line of credit agreement. For a substantial effect on interstate commerce, however, the main opinion relies entirely on other distinct contracts and transactions collateral to or even unrelated to the equity line of credit agreement. Therefore, the FAA does not govern this case and does not preempt the Alabama law foreclosing the specific enforcement of arbitration agreements, § 8-1-41(3), Ala. Code 1975.

      . Because of our disposition of this case, we do not address AmSouth’s argument relating to the arbitration clause appearing in the Customer Agreement for Depository Account.

      . Sometime before September 10, 2001, Countrywide apparently had filed a "Joinder” in AmSouth's Motion to Compel Arbitration. This is further indicated by the fact that on October 10, 2001, Countrywide also filed a "Joinder” in AmSouth's brief, stating that it was doing so "in further support of its previously filed Joinder in AmSouth’s Motion to Compel Arbitration.” Nonetheless, the record does not contain a copy of Countrywide's joinder in AmSouth’s motion to compel arbitration.

      . In its brief to this Court, AmSouth states that the hearing related to both its motion and that of Countrywide. The Deeses state in their brief that the hearing related only to AmSouth’s motion. No transcript of the hearing appears in the record and nothing in the record references the scope of the hearing.

      . On November 26, 2001, Countrywide filed a notice of appeal; it subsequently filed a motion to dismiss that appeal, which was granted on February 5, 2002.

      . Information in the affidavits relating solely to the effect on commerce of the Customer Agreement for Depository Account is omitted. See note 1. Although the information presented here is compiled from four affidavits, it is presented sequentially.'

      “ *Only Leffie Dees, III actually signed the Equity Line of Credit Agreement.”