author: HARWOOD, Justice. LYONS, Justice JOHNSTONE, Justice

text:
    Caroline Edwards POTTS v. BAPTIST HEALTH SYSTEM, INC., and Walker Regional Medical Center, Inc.
    1011234.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Garve Ivey, Jr., of Ivey & Ragsdale, Jasper; and Mark B. Turner, Jasper, for appellant.
    William G. Somerville III and Lynlee Wells Palmer of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for appel-lees.
   HARWOOD, Justice.

On February 9, 1999, Caroline Edwards Potts, a registered nurse and a former employee of Walker Regional Medical Center, Inc., sued Baptist Health System, Inc. (hereinafter referred to as “BHS”), Walker Regional Medical Center, Inc., and other individual defendants, alleging breach of contract, defamation, intentional infliction of emotional distress, invasion of privacy, and wrongful termination. Potts’s claims arose from the termination of her employment with Walker Regional Medical Center, Inc., d/b/a Walker Baptist Medical Center (hereinafter referred to as ‘Walker Medical”). In response to Potts’s complaint, BHS and Walker Medical (hereinafter jointly referred to as “the defendants”) filed a motion to stay the proceedings and to compel arbitration pursuant to the arbitration provision contained in a document entitled “Dispute Resolution Program” provided by BHS to Potts.

On November 21, 2000, Potts filed a “motion to strike and motion to continue Defendants’ motions to compel arbitration pending discovery.” The trial court issued an order on November 27, 2000, granting Potts’s motion and allowing Potts 120 days to complete discovery relating to the enforceability of the arbitration provision. The defendants challenged the trial court’s order allowing discovery by appealing the decision and also by filing a petition for a writ of mandamus. Although this Court denied the petition for a writ of mandamus on February 12, 2001, this Court later reinstated it and dismissed the appeal. Ex parte Walker Reg’l Med. Ctr., Inc., 825 So.2d 741 (Ala.2001). In that opinion, we issued a writ of mandamus directing the trial court to vacate its order granting discovery in Potts’s action and ordered it, instead, to provide Potts with an opportunity to satisfy the factually-based-predicate standard as set out in Ex parte Greenstreet, 806 So.2d 1203 (Ala.2001).

The defendants thereafter submitted to the trial court a supplemental brief and several affidavits in support of their motion to compel arbitration. In response, on February 4, 2002, Potts’s attorney sent a letter, accompanied by an affidavit by Potts, to the trial court. After a hearing on the matter, the trial court granted the motion to compel arbitration and dismissed the case on March 5, 2002.

The trial court’s order states, in pertinent part:

“The facts in this case show that defendants, Baptist Health System, Inc., and Walker Regional Medical Center, Inc., the parties moving for arbitration, met their burden of proving a prima facie showing, to-wit: (1) the existence of a contract between [Potts] and the defendants, and (2) that said contract contains an Arbitration Clause, and (3) that said transaction substantially affects interstate commerce, and thereupon, the burden of persuasion shifted to [Potts,] who is opposing arbitration, and the facts further show [Potts] failed to present a ‘factually based predicate’ sufficient to give her a right to conduct discovery regarding matters that could invalidate the agreement to arbitrate and therefore, [Potts] has not overcome the prima facie evidence presented by defendants herein, and the Court is of the opinion that defendants’ Motion to Compel should be granted.”

Potts appealed to this Court, arguing: 1) .that the trial court erred in compelling arbitration because, she argues, the transaction at issue had no effect on interstate commerce, and 2) that the circumstances surrounding the agreement to arbitrate render the agreement unconscionable. Potts makes no other arguments as to the arbitratibilty of the dispute.

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either par ty is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction [substantially] affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Community Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Potts’s complaint states, in relevant part:

“[D]uring or about 1994, [Potts] and Defendants entered into a written contract, via the Employee Handbook of policies and procedures, by which Defendants promised to employ [Potts] in consideration of [Potts’s] nursing services.
“That on or about September 22, 1998, [Potts], personally and through legal counsel, provided Defendants with a written request for a hearing by a specially selected Peer Review Committee as provided, under contract, in the Employment Dispute Resolution Program, as well as a request to review her personnel file. Defendants denied both requests.
“That for a period of time between October 1996, to October 1998, the Defendants engaged in an orchestrated pattern and practice of harassment against [Potts] for reporting unsafe practices concerning patient well-being, engaged in by other medical nursing staff. Said harassment includes, but is not limited to, (1) refusing to give [Potts] employment benefits, although qualifying, (2) refusal to place [Potts] on full-time status, although working over 40 hours per week, (3) denying [Potts] proper training opportunities, although required to fulfill hospital certifications, and (4) denying [Potts] time off for medically necessary surgery.”

Toni W. Geddings, the human resources director at Walker Medical, stated in an affidavit, in pertinent part:

“In the fall of 1997, Walker [Medical] began implementing a ‘Dispute Resolution Program’ (‘the Program’). Supervisory employees were required to attend a teleconference on October 20 and October 21, 1997. During this teleconference, it was explained that Walker [Medical] was adopting the Program, and that individuals who remained employed beyond January 1,1998, would be bound by the Program. Carolyn [sic] Edwards Potts attended the teleconference on October 20, 1997. She was told during the meeting that the final step in the Program would be final and binding arbitration, that arbitration would be a substitute for going to court, and that claims she had or might have against Walker [Medical] would have to be submitted to binding arbitration. Attached as Exhibits [sic] B to this Affidavit is an acknowledgment form signed by Caroline Edwards Potts showing that she received copies of the Program and that she understood that the Program would govern any future dispute she might have with Walker [Medical]. Attached as Exhibit C is a copy of a notice that was distributed with each employees’ paycheck. The language contained in those notices was on posters that were posted in the hospital facility, including the main employee entrance. [Exhibit B is set out in part at a later point in this opinion; Exhibit C is omitted.]”

After signing the acknowledgment form, Potts continued working at Walker Medical until her termination in 1998. Regarding her termination from Walker Medical, Potts stated in her complaint:

“[O]n or about September 16, 1998, [Potts] was suspended without pay, by Defendants, until further notice due to an investigation into a patient’s death without probable cause against [Potts]. Further, that when [Potts] asked Defendants for legal representation, [Potts] was refused such representation and [was] told [Potts] would be terminated if [Potts] pursued obtaining such representation.
“[O]n or about October 1, 1998, [Potts] received a certified letter from Defendants terminating [Potts’s] employment with said Defendants without stating cause or charges against [Potts].”

The dispute or controversy presented, as ultimately defined and described by Potts’s counsel in his February 4, 2002, letter to the trial judge and in Potts’s attached affidavit, is as follows:

Letter: “The only transaction upon which we sue is the wrongful discharge of my client which was between two Alabama residents, in Alabama, concerning Alabama, and having nothing whatsoever to do with interstate commerce or any of the arguments set forth by the Defendants.”
Potts’s affidavit: “There is nothing in or about my complaint that has anything to do with interstate commerce, and the transaction I complain of is for the discharge by Walker Baptist Medical Center from my employment there.”

(Emphasis added.) Potts states in her brief to this Court that she “has sued for wrongful termination.”

The defendants initially argue that the health-care industry involves per se interstate commerce. In doing so, the defendants refer to the National Labor Relations Act, 29 U.S.C. § 151 et seq., and the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., to show that they are involved in interstate commerce. However, as this Court stated in Alafabco, Inc. v. Citizens Bank, [Ms. 1010703, Aug. 30, 2002] — So.2d —, — (Ala.2002), “Molding that a transaction [or contract] is subject to the [Federal Arbitration Act] simply by virtue of ... Congressional regulation of some aspect of one party’s business, would effectively transform every ‘local’ transaction into a ‘national’ one. As Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (2000),] points out, such an approach is impermissible under our federal system of government” (citing Sisters of the Visitation, 775 So.2d at 767, in turn citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937))(emphasis added).

I. Substantial 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 Ala.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, N.A., 846 So.2d 1082 (Ala.2002).”

AmSouth Bank v. Dees, 847 So.2d 923, 929 (Ala.2002). Accordingly, the focus of our inquiry is whether the defendants have shown that Potts’s contract of employment, as effectively modified on January 1, 1998, by the implementation of the dispute-resolution program, or the transaction it evidences, substantially affects interstate commerce under the facts and circumstances of this case. The burden of proof was on the defendants to provide evidence demonstrating that Potts’s employment contract, or the transaction it evidenced, substantially affected interstate commerce.

In an attempt to meet this burden, the defendants presented several affidavits. Taken collectively, those affidavits show the following concerning the operations of BHS and Walker Medical:

“The operation of Walker [Medical] involves several activities that have an impact on interstate commerce. The hospital is located in Jasper, Alabama, on U.S. Highway 78, which is a federal highway that is the primary transportation route between Birmingham, Alabama, and Memphis, Tennessee. The hospital treats out-of-state patients. In addition, the hospital receives millions of dollars in federal funds as reimbursement for treating Medicare beneficiaries.
“The hospital recruits physicians from other states, and in doing so uses telephones, the U.S. Mail, airlines, and other methods of interstate commerce. It also receives hundreds of thousands of dollars annually from out-of-state insurance carriers, health maintenance organizations, and employee welfare benefit plans, as reimbursement for patient care. Some of these out-of-state insurers (and their location) include: United Healthcare (Salt Lake City, Utah[,] and Greensboro, North Carolina); Mailhan-dlers (Jacksonville, Florida); Federal Black Lung Program (Lanham-Sea-brook, Maryland); CHAMPUS (Florence, South Carolina); United Food & Commercial Workers (Atlanta, Georgia); Central States (Rosemont, Illinois); Rural Carrier Benefit Plan (Charlotte, North Carolina); and, UMWS Health and Retirement Funds (Van Nuys, California).
“Many of [BHS’s] contracts for supplies are procured through Novation, a supply cost management company. No-vation is a national company managing more than $12 billion in annual purchases on behalf of more than five thousand (5000) health care organizations.... Novation provides contracts for VHA, a nationwide network of more than twenty-two hundred (2200) community-owned health care systems.... [BHS] is a VHA member and, therefore, uses Novation for many of its supply contracts. Novation’s corporate offices are located in Irving, Texas.
‘Walker [Medical’s] nurses and doctors regularly use medical supplies provided by out of state vendors. Some of these vendors include: Kimberly-Clark (Roswell, Georgia); E.M. Adams (Fort Pierce, Florida); Abbott (Columbus, Ohio); Arrow International (Reading, Pennsylvania); Kendall (Mansfield, Massachusetts); and Sage (Crystal Lake, Iowa).
“... [W]ell over eighty percent, and probably ninety to ninety-five percent, of the materials used by BHS in its business come ultimately from outside the state of Alabama.
“... [A]t least 50% percent of these materials were shipped to BHS directly from out-of-state suppliers.
“BHS’s revenues from its health care business and sales of health care services during the last five years have ranged from $750 million to $1,819 million (1.819 billion). All BHS hospitals have at least one employee whose job is to receive and handle goods from BHS vendors and suppliers.
“BHS’s total gross revenues for the fiscal year ending June 30, 2001 were $1,819,431,476. The gross revenues for Walker [Medical] for the same period were $158,688,000. BHS purchased in excess of $100 million worth of materials in the fiscal year ending June 30, 2001. I would expect the figure for the current fiscal year to be approximately the same.
“It has been the habit and routine practice of BHS to purchase eighty to ninety-five percent of its clinical and nonclinical supplies from suppliers out of state or from suppliers in state who have contracted with BHS to obtain such goods from out of state.”

Regarding the materials used by Potts in the course of her employment with the defendants, the affidavits show the following:

“Abbott Laboratories, a worldwide corporation headquartered in Abbott Park, Illinois, manufactures the intravenous fluid, intravenous tubing and PCA lifecare pumps used at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts began TVs, using intravenous fluid and intravenous tubing, and Abbott lifecare pumps.
“Allegiance, a national corporation headquartered in McGaw Park, Illinois, manufactures the glucose testing strips and latex gloves used by Walker [Medical], As a part of her job responsibilities, Caroline Edwards Potts used glucose testing strips in caring for patients. As a part of her job responsibilities, Caroline Edwards Potts used latex gloves.
“Becton, Dickinson & Company, a national company based in Franklin Lakes, New Jersey, manufactures glucose testing strips and syringes used at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts used syringes....
“Calgon Vestal, a company formerly based out of St. Louis, Missouri, manufactured wound care management products used at Walker [Medical]. Calgon Vestal is currently owned by Convatec, a division of Bristol Myers Squibb, and is headquartered in Skillman, New Jersey. As a part of her job responsibilities, Caroline Edwards Potts provided wound care management.
“Carstens, a national corporation located in Chicago, Illinois, manufactures the medical charting systems used at Walker [Medical]. Briggs Corporation, a national supplier headquartered in West Des Moines, Iowa, manufactures the chart labels used at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts used medical charts. Such charts were labeled.
“HammerMill, a division of International Paper, headquartered in Stamford, Connecticut, manufactures paper products used at Walker [Medical]. Xerox, an international corporation headquartered in Stamford, Connecticut, manufactures paper products used at Walker [Medical], As a part of her job responsibilities, Caroline Edwards Potts received and made reports on patients and made assignments to other nurses on paper manufactured by HammerMill or Xerox.
“Kimberly-Clark, an international corporation with its world headquarters in Dallas, Texas, manufactures surgical masks used at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts used surgical masks.
“Nellcor, a national corporation headquartered in Pleasanton, California, manufactures pulse oximeters used at Walker [Medical]. Nellcor is a division of Tyco International, Ltd. Tyco International is a worldwide corporation with offices in Bermuda and Exeter, New Hampshire. As a part of her job responsibilities, Caroline Edwards Potts placed pulse oximeter probes on patients.
“Owens & Minor, a national distribution company headquartered in Richmond, Virginia, supplies Walker [Medical] with diapers, catheters and other medical/surgical supplies. As a part of her job responsibilities, Caroline Edwards Potts used ... needles, catheters and other medical/surgical supplies.
“Premium Plastics, a nationwide company with its home office in Chicago, Illinois, manufactures cups used to dispense medication to patients at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts distributed medication to patients. This medication was distributed in plastic cups.
“Pyxis Corporation, a national company headquartered in San Diego, California, manufactures the Pyxis system used at Walker [Medical]. As a part of her job responsibilities, Caroline Edwards Potts .used the Pyxis system.
“Ross Products, a division of Abbott Laboratories, manufactures nutritional supplements given to patients at Walker [Medical]. Ross Products is an international corporation with corporate offices in Columbus, Ohio. As a part of her job responsibilities, Caroline Edwards Potts distributed nutritional supplements to patients.
“Tech:time, a corporation located in Sarasota, Florida, manufactured the time clock used at Walker [Medical]. When Caroline Edward Potts arrived at work, she clocked in on a time clock manufactured by Time:teeh [sic].
“... [W]ell over one-half, and probably close to ninety percent, of the goods and equipment used by [Potts] in the care of patients came ultimately from outside the state of Alabama.... [A]t least fifty percent of the goods and equipment used by [Potts] in treating patients at Walker [Medical] were shipped directly to BHS from out of state.”

In Alafabco, Inc. v. Citizens Bank, supra, we observed:

“ ‘The test adopted in Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000),] focuses on the quantity and quality of involvement of foreign entities with the subject transaction. Specifically, the subjects of inquiry are (1) the “citizenship of the parties,” (2) the origin of any “tools and equipment” actually used in the transaction, (3) the “allocation of cost of services and materials,” (4) the “subsequent movement across state lines” of the “object of the services,” and (5) the “degree of separability from other contracts.” 775 So.2d at 765-67. An analysis applying these factors is “necessarily fact intensive.” Id. at 765 n. 5.’ ”

— So.2d at — (quoting Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220, 221 (Ala.2002)).

BHS argues that the nature of its business operations and that of Walker Medical, the out-of-state origin and amount of the supplies provided for use by Potts and other nurses, and payments from out-of-state entities cause its employment contracts to affect interstate commerce. Regarding this point, we stated in Alafabco:

“The FAA [Federal Arbitration Act] renders enforceable any ‘written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal.... ’ 9 U.S.C. § 2 (emphasis added [in Alafabco]). Thus, on its face, the FAA applies only to ‘transactions,’ ‘contracts,’ and ‘controversies.’
“The FAA defines ‘transactions’ in the maritime context, as including ‘charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters ... which, if the subject of controversy, would be embraced within admiralty jurisdiction.’ 9 U.S.C. § 1 (emphasis added [in Alafabco]). The FAA focuses on the narrow concepts of acts, omissions, or agreements, not on the broader concepts on which the Bank focuses, such as the nature of the parties’ businesses or the general ‘course of dealings between the parties.’ ”

— So.2d at — (last emphasis added).

Under §§ 1 and 2, the Federal Arbitration Act (“the FAA”) is triggered only where the controversy arises out of a contract or transaction involving interstate commerce. Under our jurisprudence, that involvement must be substantial. See Sisters of the Visitation, supra. Here, the controversy relates to the alleged wrongful discharge of Potts. That discharge necessarily arose out of Potts’s contract of employment and/or the “transaction” it evidenced — her ongoing employment. Thus, the defendants must show that Potts’s contract of employment, as effectively modified on January 1, 1998, by the implementation of the dispute-resolution program, or the transaction it evidenced — her continued employment — substantially affected interstate commerce.

Consequently, we now consider the evidence presented by the defendants in support of their motion to compel arbitration under the framework set out in Sisters of the Visitation.

A.Citizenship of the Parties

As the defendants acknowledge in their brief, “BHS, Walker [Medical] and Potts are all citizens of Alabama.” Therefore, this category provides no support for a conclusion that Potts’s modified employment contract or her continued employment with the defendants substantially affected interstate commerce.

B.Tools and Equipment Used in the Transaction

Potts’s argument in her brief to this Court that this factor is not applicable here consists only of the assertation that “[t]his prong is inapplicable, in that there are no ‘tools and equipment.’ The only ‘equipment’ at issue is the labor of [Potts].” However, in the course of rendering her services, Potts necessarily used medical supplies provided to her by Walker Medical. The acquisition of those supplies by Walker Medical involved transactions between it and various suppliers. As the affidavits submitted by the defendants established, “at least fifty percent of the goods and equipment used by [Potts] in treating patients at Walker [Medical] [was] shipped directly to BHS from out of state,” and “probably close to ninety percent of the goods and equipment used by [Potts] in the care of patients came ultimately from outside the State of Alabama.” Potts’s employment could not have continued without the constant flow into Walker Medical of the interstate stream of supplies indispensable to the performance of Potts’s duties as a registered nurse. Thus, the interstate acquisitions of Walker Medical are related to the subject of the controversy between the defendants and Potts. Consequently, this category provides some support for a conclusion that Potts’s modified employment contract or the transaction it evidenced in the form of her continued employment with the defendants substantially affected interstate commerce.

C.Allocation of Costs

Potts’s only argument in her appellate brief concerning this factor is the simple assertion that “[a]ll of the plaintiffs services were performed in Alabama, for an Alabama entity, on Alabama patients, for an Alabama paycheck.” The record shows that “BHS purchased in excess of $100 million worth of materials in the fiscal year ending June 30, 2001[and] the figure for the [then] current fiscal year [was expected] to be approximately the same.” The record further reflects that “[i]t has been the habit and routine practice of BHS to purchase eighty to ninety-five percent of its clinical and nonclinical supplies from suppliers out of state or from suppliers in state who have contracted with BHS to obtain such goods from out of state.” As also already noted, “well over one-half, and probably close to ninety percent, of the goods and equipment used by [Potts] in the care of patients came ultimately from outside the state of Alabama [and] at least fifty percent of the goods and equipment used by [Potts] in treating patients at Walker [Medical] were shipped directly to BHS from out of state.” Thus, this category provides additional support for a conclusion that Potts’s modified employment contract or her continued employment with the defendants substantially affected interstate commerce.

D.Subsequent Movement Across State Lines

The defendants argue that “[m]any of BHS’s patients come from locales outside the State of Alabama and, consequently, cross state lines to pursue or to return from medical treatment.” This proposition is based solely on the statement in the affidavit of Bobby J. Davenport, vice president of support services at Walker Medical, that “[t]he hospital treats out-of-state patients.” The record is silent as to whether or when Potts had any contact with those out-of-state patients, or the number or percentage of out-of-state patients treated at Walker Medical during any given period. Therefore, an analysis of this category provides no support for a conclusion that Potts’s modified employment contract or her continued employment with the defendants substantially affected interstate commerce.

E. Degree of Separability from, Other Contracts

The defendants argue in their brief to this Court that “BHS’s at-will employment contracts, such as the at-will contract with Potts, cannot be separated from its interstate contracts to treat patients or purchase supplies.” Under the facts and circumstances present in this case, we agree with the defendants’ argument as it relates to the purchase of supplies. As already noted, Potts’s performance of her employment duties was necessarily dependant upon the various contracts BHS had with its network of suppliers, many of whom were themselves located out of state, for a steady stream of medical supplies through the channels of interstate commerce.

Although the defendants have not provided sufficient evidence regarding all of the categories of the Sisters of the Visitation framework, they have shown that sizable amounts of goods used by Potts in treating patients were purchased in interstate commerce and also that Potts used many of those goods on a daily and recurring basis throughout the course of her employment with the defendants. Although this showing might not always be conclusive, under the facts and circumstances of this case, and in the absence of further argument and support from Potts, we conclude that the defendants have shown that their employment relationship with Potts did have a substantial effect upon interstate commerce. Thus, the FAA applies to the dispute among the parties and preempts Ala.Code 1975, § 8-1-41(3), which states, in relevant part, “The following obligations cannot be specifically enforced: ... (3) An agreement to submit a controversy to arbitration.”

II. Unconscionability

Relying on American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala.2000), Potts next argues that the circumstances surrounding the agreement to arbitrate render that agreement unconscionable. Moreover, Potts specifically argues in her brief to this Court that “[t]o require the signing of an arbitration agreement under the circumstances of this case is unconscionable.” However, the record does not show that Potts was forced to sign an arbitration agreement. To the contrary, the record shows only that Potts signed an “Acknowledgment of Receipt of BHS Dispute Resolution Program.” Nonetheless, we understand her argument to assert that the imposition of the dispute-resolution program, containing the arbitration provision, contingent on her acceptance of continued employment with the defendants, was unconscionable. The only facts regarding the circumstances of this occurrence are contained in Potts’s affidavit and in the previously quoted affidavit of Toni W. Geddings. Potts states in her affidavit:

“I was called into a room with twelve to fifteen people where I was played a prerecorded tape and where a form was provided to me and the others, and we were told by employees of Walker Baptist Medical Center we had to sign the form or lose our job. I asked if I could take the form and read it and return it later, and I was told I could not leave the room with the form and that I either had to sign it then and there or lose my job.”

As Geddings stated in her affidavit, on October 20, 1997, Potts attended a conference where Walker Medical representatives explained that Walker Medical was adopting a new dispute-resolution program and that “individuals who remained employed beyond January 1, 1998, would be bound by the Program.” Furthermore, Geddings stated, “Attached as Exhibits [sic] B to this Affidavit is an acknowledgement form signed by Caroline Edwards Potts showing that she received copies of the Program and that she understood that the Program would govern any future dispute she might have with Walker [Medical].”

Exhibit B, contained in the record, reads, in pertinent part:

“ACKNOWLEDGEMENT OF RECEIPT OF BHS DISPUTE RESOLUTION PROGRAM.
“I acknowledge receipt of the BHS Dispute Resolution Program document. I understand I am obligated to read this document as it governs my continued employment and all future legal disputes between me and [BHS] as defined in the document. I understand that it is my responsibility to consult with my Human Resource director if I have any questions.”

Near the bottom of the form is a line reading: “Dispute Resolution Program Effective Date: January 1,1998.”

In American General Finance v. Branch, supra, this Court stated:

“ ‘ “Although Alabama law lacks an explicit standard for determining whether a contract or contractual provision is unconscionable, ease law reveals that four factors are important in making this determination.
“ ‘ “In addition to finding that one party was unsophisticated and/or uneducated, a court should ask (1) whether there was an absence of meaningful choice on one party’s part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided, or patently unfair terms in the contract.”
‘Layne v. Garner, 612 So.2d 404, 408 (Ala.1992).’ ”

793 So.2d at 743. Potts is a registered nurse. We therefore infer that she is sufficiently well-educated to read and understand the documents concerning the BHS dispute-resolution program. Moreover, nowhere in the record does Potts argue that she is unsophisticated or uneducated.

A. Absence of Meaningful Choice

Under this factor, Potts argues that the facts surrounding her signing of the acknowledgment form deprived her of a meaningful choice regarding whether to sign the form. In so doing, Potts asserts that “both Potts and her husband were totally dependent upon [Walker Medical] for their living.” Potts then concludes that the choice she was presented with— either refusing to sign the acknowledgment form and losing her employment, or signing the acknowledgment form and remaining employed — “is not a meaningful choice.” However, Potts makes no attempt to show that she would have been unable to obtain employment elsewhere during the period between her signing of the form relating to the BHS dispute-resolution program and the effective date of the program some 72 days later, or that her attempt to do so would require a considerable expenditure of time and resources. See Conseco Fin. Corp. v. Boone, 838 So.2d 370, 373 (Ala.2002)(“ ‘[Boone has] made no showing that [she] lacked a meaningful choice in obtaining financing .... Nothing in the record suggests that [Boone] attempted to “shop around” for a financing arrangement that would not call for arbitration of disputes.’ ” (quoting Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 825 (Ala.2001))). The record reflects no showing by Potts concerning the job market for registered nurses in the area or evidence indicating that all other nursing jobs available to her would also have required her to agree to such an arbitration agreement.

B. Unreasonably Favorable Contractual Terms

As to this criterion, Potts alleges in her brief simply that “[t]he terms of the contract in the case confer all of the benefits upon [Walker Medical], preserving none to the Potts.” She undertakes no analysis beyond this bare allegation. Important to this Court’s holding in American General Finance v. Branch, supra, was the inclusion of two specific clauses in the arbitration agreement in that case. One of the offending clauses in that agreement exempted the lender, but not the borrower, from arbitrating certain types of claims, and the other limited the arbitrator’s ability to award damages. By way of contrast, BHS’s dispute-resolution program was equally binding on the parties, and it did not limit the arbitrator’s ability to provide remedies under Alabama law. Moreover, the program afforded Potts specified rights, not otherwise available to her as an at-will employee, including the right to be heard by the supervisory structure and/or by a specially selected peer review committee in order to resolve a dispute before proceeding to arbitration. Thus, the type and degree of inequality of contractual provisions found in American General Finance v. Branch are not here present.

C. Unequal Bargaining Power Among the Parties

Potts argues: “To say that the Baptist Health System stands in a superi- or bargaining position to Potts is an understatement. They held the keys to her job and her ability to feed her family.” However, Potts provided no evidence showing how her situation is different from any other contract of at-will employment. As this Court stated in Ex parte Michelin North America, Inc., 795 So.2d 674, 677 (Ala.2001):

“In Alabama, an employment relationship is ordinarily ‘at will,’ and the fundamental principle of employment at will is that the employment relationship is terminable by either party at any time and for any reason. Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala.1987); Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130, 1131 (Ala.1977). Thus, Alabama is what is commonly known as an ‘employment-at-will’ state.”

Therefore, the possibility of termination flowing from Potts’s refusal to sign an acknowledgment form is not, in and of itself, unconscionable. Moreover, although Potts argues that her family would suffer financial hardship if she failed to sign the acknowledgment and was then fired, Alabama law does not allow a mere showing of financial hardship to invalidate an arbitration agreement. Regarding this issue, this Court stated in Green Tree Financial Corp. v. Wampler, 749 So.2d 409, 416 (Ala.1999):

“We have previously acknowledged that the FAA, 9 U.S.C. § 2, binds us to faithfully apply general principles of Alabama contract law when considering a challenge to the validity of an arbitration agreement. Because the general principles of Alabama contract law do not excuse performance on the grounds of financial hardship, we cannot allow a party’s poverty, standing alone and independent of other considerations justifying a finding of uneonscionability, to constitute a defense to enforcement of an arbitration agreement.”

D. Oppressive or Unfair Terms in the Contract

Potts does not assert that the contract contained oppressive or unfair terms. Instead, she argues generally only that, “[i]n this case, the very existence of the contract and the circumstances surrounding the obtaining of it are so grossly oppressive as to require relief.” As mentioned earlier in this opinion, the dispute-resolution program provides procedures by which a dispute may be resolved by the parties, without first resorting to arbitration. The program also allows the employee to be represented at arbitration hearings, provides for discovery, and does not purport to limit damages as the arbitration agreement in American General Finance v. Branch did.

Moreover, regarding the costs of arbitration, the dispute-resolution program provides that “BHS agrees to pay the administrative and hearing fees attributable to the arbitration (other than the $50 initiation fee) and the Arbitrator’s daily rate and expenses, unless the employee objects, in which case the parties will share the cost equally.” Therefore, based on the facts and arguments before us, we are unable to say that the program contains oppressive or unfair terms.

For these reasons, Potts has not provided the type of evidentiary showing that this Court was presented with when it held the arbitration clause unconscionable in American General Finance v. Branch. Accordingly, this Court is unable to conclude that the circumstances surrounding Potts’s acceptance of continued employment with the defendants were unconscionable. Thus, the judgment of the trial court is affirmed.

AFFIRMED.

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

SEE, J., concurs in the result.

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

LYONS, Justice

(dissenting).

The two more compelling arguments in favor of Potts’s employment agreement’s having a substantial effect on interstate commerce relate to the defendants’ furnishing Potts medical equipment and supplies flowing in interstate commerce and the receipt by the defendants of “hundreds of thousands of dollars annually from out-of-state insurance carriers, health maintenance organizations, and employee welfare benefit plans, as reimbursement for patient care.” However, we are not given any relationship between the total amount paid for medical equipment and supplies and the amount paid to Potts as salary, nor are we given the relationship between the revenue the hospital derived from interstate reimbursement for patient care and its total revenue. Evidence indicating that the defendants purchased equipment and supplies moving in interstate commerce and received out-of-state reimbursement for patient care, without quantification or application to Potts’s situation, is inadequate to support a finding that her employment agreement had a substantial effect on interstate commerce. Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002). See also Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000).

The issue here is very difficult because if the evidence were properly developed, a substantial effect on interstate commerce would probably be demonstrated. Nevertheless, I am reluctant to apply the concept of judicial notice to this issue. Rule 201(b), Ala. R. Evid., does not apply to the kind of facts before us in this case.

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
I respectfully dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The plaintiff Potts’s employment contract with the defendants does not substantially affect interstate commerce, and the main opinion contravenes our binding precedents in its holding that the employment contract does substantially affect interstate commerce.

The main opinion overlooks the most applicable holdings of Alafabco, Inc. v. Citizens Bank, [Ms. 1010703, Aug. 30, 2002] — So.2d —, — (Ala.2002):

“Thus the facts that the Bank 'routinely conducts business in interstate commerce’; that Alafabco owns and uses materials ‘manufactured outside the state of Alabama’; and that Alafabco operates its business with funds borrowed from the Bank cannot support arbitrability of this dispute.
“Moreover, under §§ 1 and 2, the FAA applies only where the transaction affecting interstate commerce is the ‘subject of [the] controversy.’ ”

(Emphasis added.) The contract to be judged for its substantial effect, or want thereof, on interstate commerce is Potts’s employment contract, exclusively between and among Alabama resident parties exclusively for services to be rendered exclusively inside Alabama for wages exclusively earned, paid, and received in Alabama. The main opinion, however, relies entirely on the myriad of separate and distinct interstate contracts between the defendants and out-of-state entities unrelated to the plaintiff. None of these contracts between the defendants and entities unrelated to the plaintiff “is. the ‘subject of [the] controversy.’ ” Id. Thus, while the main opinion recognizes the Alafabco holding that “[t]he FAA focuses on the narrow concepts of acts, omissions, or agreements, not on the broader concepts on which the Bank focuses, such as the nature of the parties’ businesses,” 853 So.2d at 202 (emphasis added), the main opinion still misplaces the focus on the nature of the defendants’ businesses.

The main opinion does recognize the holding of Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 766-67 (Ala.2000), that separable interstate contracts do not impart their interstate effects to the contract that grounds the controversy between the parties. To avoid this holding, however, the main opinion relies on factual conclusions not supported by the record. The main opinion says, “Potts’s employment could not have continued without the constant flow into Walker Medical of the interstate stream of supplies indispensable to the performance of Potts’s duties as a registered nurse.” 853 So.2d at 203. Likewise, the main opinion says, “As already noted, Potts’s performance of her employment duties was necessarily dependant upon the various contracts BHS had with its network of [interstate] suppliers.” 853 So.2d at 204. The defendants, however, do not even claim, much less prove, that they could not or would not have employed Potts or continued her employment if they could not or did not obtain these particular supplies from these particular sources or from out-of-state sources in general, or, indeed, if they could not or did not obtain these supplies at all.

Moreover, Sisters of the Visitation holds that distinct interstate contracts are separable from the contract grounding the dispute unless “the delays or distractions attendant to litigation, as opposed to the ostensibly simpler mode of dispute resolution afforded by arbitration, would disrupt the performance of the other contracts that have a substantial effect on interstate commerce.” 775 So.2d at 767. The defendants presently before us do not even pretend that litigating, as distinguished from arbitrating, with Potts would, to any extent at all, “disrupt the performance of the other contracts that have a substantial effect on interstate commerce.” Indeed, such a pretense would be absurd.

Finally, while the main opinion recognizes the allocation-of-costs factor adopted by Sisters, 775 So.2d at 765-66, the main opinion seems to misconstrue this factor and to misapply it to the facts. For the use of out-of-state materials in a service contract to impart a substantial interstate feature to the contract, about half of what is paid to the party performing the service must be allocable to the interstate materials. Id. While, as the main opinion states, between fifty percent and ninety percent of the materials used by Potts in performing her services may have come from out of state, the record does not reveal the cost of the materials used by Potts, and therefore the record does not support any comparison between Potts’s wages and the cost of the out-of-state materials used by Potts in performing her services. Even if a hundred percent of the materials used by Potts came from out of state, the interstate feature of these materials would not, according to Sisters of the Visitation, 775 So.2d at 765-66, impart a substantial interstate effect to Potts’s employment contract unless the cost of those materials approximately equaled or exceeded Potts’s wages. (The Sisters of the Visitation analysis hypothesizes an employee farmer who is paid for both his services and the out-of-state materials he buys and uses in performing his services, while in the case before us the defendants themselves bought all of the materials and paid Potts solely for her services.) Because the record does not reveal the cost of the out-of-state materials used by Potts, and indeed does not even reveal the amount of Potts’s wages, this Court cannot legitimately conclude that an allocation of the costs of those materials, in comparison to the wages paid to Potts, imparts to Potts’s employment contract a substantial effect on interstate commerce. Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002).

While the United States Congress, to the extent of the authority granted by the Commerce Clause, may formulate policy and impose it on the states and their citizens, such policy does not apply to transactions or contracts that are beyond or outside the ambit of that constitutional authority. Sisters of the Visitation, 775 So.2d at 767-71 (Johnstone, J., concurring). The Tenth Amendment to the United States Constitution reserves to the sovereign states the authority to govern transactions and contracts that are beyond or outside the Commerce Clause. Id. The Congress wages a continual assault on this state sovereignty. See, e.g., United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). This Court gratuitously surrenders the sovereignty of Alabama to this assault whenever this Court, without the compulsion of binding precedent, or, even worse, against the holdings of binding precedent, decides that a contract substantially affects interstate commerce and therefore incurs the governance of the Federal Arbitration Act at the expense of the contrary policy adopted by the Alabama Legislature in enacting § 8-1-41(3), Ala.Code 1975, prohibiting the specific enforcement of predispute arbitration agreements. Today’s decision is such a surrender, and one that will have drastic consequences to the people of this State.

      . In her complaint Potts alleged that she "is a registered nurse in Alabama and was an employee of Defendant corporations for four years and four months, more or less."

      . The identities of the individual defendants are not relevant to our disposition of this case.

      . At page 5 of their brief to this Court, BHS and Walker Medical assert that Walker Medical, along with several other hospitals, is a subsidiary of BHS. Although the record does not precisely address this point, it does support this inference, and Potts makes no statement to the contrary. Thus, our analysis proceeds on the inference, implicit in the parties' briefs to this Court and explicit in Potts's statement quoted in note 1 that she "was an employee of Defendant corporations,” that Potts was employed by both BHS and Walker Medical.

      . "When a trial court enters an order compelling arbitration, a stay of the proceedings in the trial court during the pendency of the arbitration protects the plaintiff from facing the prospect of the expiration of an applicable statute of limitations or from paying another filing fee in the event future legal proceedings become necessary. An order compelling arbitration should not constitute an adjudication on the merits; therefore, a trial court should not dismiss ... a case in which arbitration is ordered.”

        Mostelia v. N & N Motors, 840 So.2d 877, 880 (Ala.2002). Although this Court disfavors the dismissal of cases in which a motion to compel arbitration has been granted, and instead favors a stay of those cases, the parties do not argue this issue on appeal; consequently, we do not address the issue further.

      . The record contains affidavits, presented by the defendants, from the following persons: Bobby J. Davenport, vice president of support services at Walker Medical; Marvin Wayne Burns, director of materials management at Walker Medical; Cynthia Key, a registered nurse at Walker Medical; and Tom Sanders, senior vice president of human resources and administration for BHS.

      . In compiling the materials from the affidavits, we have grouped factually similar material together in a single paragraph, although we may have extracted the material from two or m0re affidavits.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ronald AMMONS, by and through WAUSAU INSURANCE COMPANY v. TESKER MANUFACTURING CORPORATION. Tesker Manufacturing Corporation v. Ronald Ammons, by and through Wausau Insurance Company.
    1011213 and 1011313.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Brenda L. Harrell and M. Shane Lueka-do of Shelby & Cartee, P.C., Birmingham, for appellant/cross-appellee Ronald Am-mons, by and though Wausau Insurance Company.
    John W. Clark, Jr., Shane M. Oncale, and Charles D. Stewart, Jr., of Clark & Scott, P.C., Birmingham, for appel-lee/cross-appellant Tesker Manufacturing Corporation.
   WOODALL, Justice.

Ronald Ammons, by and through Wau-sau Insurance Company (“Wausau”), and Tesker Manufacturing Corporation (“Tesker”) appeal and cross appeal, respectively, from a judgment entered on a jury verdict in favor of Tesker in an action in which Wausau sought reimbursement of workers’ compensation benefits it paid to Ammons on behalf of Vulcan Threaded Products (“Vulcan”), Ammons’s former employer. We affirm.

On September 26, 1996, Ammons was injured during the course of his employment with Vulcan. At the time of the injury, Ammons was operating a “thread-rolling machine” (the “threader”), a component part of which was manufactured by Tesker. The threader is a semiautomated device that threads metal rods as the rods are fed into it. The threader and the threading operation are more specifically described by Tesker as follows:

“[T]he middle component of this machine was manufactured by [Tesker], which manufactured the thread rolling units and the dies that go on them. There was also an infeed and [an] out-feed tablet] that attached to each side of the unit. These extra components are known as fixtures. Tesker did not manufacture these parts for Vulcan. These components in conjunction with the Tesker machine form the threading machine ....
“These three components combine to place threads on metal rods. The rods used on this machine were approximately a quarter inch in diameter. These metal rods are considered ductile and easily bendable. The threading process works by placing a rod on [an] infeed table. A cylinder automatically feeds the rod into a tube that is in the front of the die and the rod is inserted into the machine. Once it is started, the dies turn the bar so it may be threaded. There are two support blades that trap a rod on four sides which prevent a rod from jumping out of the die or missing the exit tube.... After threading, the rod is fed into an exit tube. The exit tube is covered with a lexon guard in case of a misfeed. When a die is changed on the Tesker unit, the exit tube must be realigned. The dies on the Tesker unit are changed periodically to conform with the size of the rod being inserted into the machine. Therefore, there is no permanent configuration for the exit tube. Consequently, if the exit tube is misaligned the tube can mis-feed.”

Tesker’s Brief, at 5-7 (citations to the record omitted).

Ammons was injured when a metal shard was ejected from the machine. The metal struck him in the face, causing the loss of an eye. Wausau, Vulcan’s workers’ compensation insurer, paid benefits on behalf of Vulcan.

These proceedings began on March 24, 1999, with the filing of a complaint against Tesker, naming as plaintiffs Ammons and Wausau (hereinafter referred to collectively as ‘Wausau”). Wausau seeks reimbursement, pursuant to Ala.Code 1975, § 25-5-ll(d), of the benefits it paid. The complaint alleged that the threader was defectively designed and manufactured and included claims of negligence, wantonness, failure to warn, breach of warranty, and breach of the Alabama Extended Manufacturer’s Liability Doctrine. Tesker answered the complaint, asserting various affirmative defenses, including contributory negligence. It did not, however, assert the defense of assumption of the risk.

At the close of the plaintiffs’ case-in-chief, Tesker moved, over Wausau’s objection, to amend its answer to assert the affirmative defense of assumption of the risk. The trial court granted that motion, stating that it would allow Wausau to “reopen its case,” if it “need[ed] to put on additional evidence.” Wausau did not exercise that option.

Tesker also moved for a judgment as a matter of law (“JML”) as to Wausau’s wantonness-based claims. The trial court also granted that motion. Additionally, Tesker moved for a JML on all other claims, contending that they were barred by the statute of limitations. That motion was denied.

Over Wausau’s objections, the court charged the jury on the affirmative defense of assumption of the risk. The jury returned a verdict for Tesker, and the trial court entered a judgment on that verdict. Wausau moved for a new trial, and renewed its challenge to the jury charge on the assumption-of-the-risk defense. In an order entered on January 28, 2002, the trial court denied Wausau’s motion. From the order and the judgment, Wausau appealed (case no. 1011213). Tesker cross appealed from the judgment, contending, among other things, that the trial court erred in denying its motion for a JML on the statute-of-limitations ground (case no. 1011313).

I. The Appeal — Case No. 1011213

Wausau presents two issues on appeal. First, it contends that the trial court erred in entering a JML in favor of Tesker on the wantonness claims. Second, it insists that the trial court erred in allowing Tesker to amend its answer to assert the defense of assumption of the risk, which defense was submitted to the jury.

A. Wantonness

“The Legislature has defined ‘wantonness’ as ‘[ejonduct 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).” Hobart Corp. v. Scoggins, 776 So.2d 56, 58 (Ala.2000). “Wantonness involves 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.’” Id. (quoting Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998)) (emphasis added in Scoggins). Thus, “[t]he ‘knowledge’ of the defendant is ‘the sine qua non of wantonness.’ ” Norris v. City of Montgomery, 821 So.2d 149, 156 n. 9 (Ala.2001) (quoting Ricketts v. Norfolk Southern Ry., 686 So.2d 1100, 1106 (Ala.1996)). Wausau contends that it “presented substantial evidence of wantonness, such that the issue should have gone to the jury for determination.” Wausau’s Brief, at 19.

When it arrived at Vulcan, the threader was equipped with a guard and a warning sign. The warning sign, which was approximately 1% inches wide and 8]é inches long, read:

“DANGER
“NEVER OPERATE MACHINE WITH GUARDS OR SAFETY DEVICES REMOVED.
“KEEP HANDS AWAY FROM PINCH POINTS. ALWAYS WEAR EYE PROTECTION.
“DO NOT ATTEMPT TO HOLD ROTATING PARTS WHILE BEING ROLLED.
“DISCONNECT ELECTRICAL POWER BEFORE SETTING UP, SERVICING OR ADJUSTING MACHINE.”

(Capitalization original; emphasis added.) There was testimony at trial indicating that Vulcan had removed the original guard and had installed another guard before this accident.

Wausau argues that, based on Tesker’s knowledge of the dangers posed by the threader, as Wausau perceives it, Tesker should have provided a “better safety guard” and a more conspicuous warning. Failure to do so, Wausau insists, was wanton. We disagree.

As to what Tesker allegedly knew, Wau-sau states: “Defendant Tesker admitted actual knowledge that its thread rolling machines could throw pieces of metal.” Wausau’s Brief, at 21 (emphasis added). This statement, however, mischaracterizes the evidence. Specifically, Richard Tesker, the owner of Tesker, testified:

“Q- [By counsel for Ammons] But you have acknowledged that you have knowledge that they can be set up improperly, haven’t you?
“A. [By Richard Tesker] Yes. And I have seen people that don’t use tubes put angle iron in and that’s where they will get whipping. That’s where I have seen it.
“Q. But that’s not Vulcan. They put a tube on it, don’t they?
“A. Correct.
“Q. And you have still seen tubes misa-lign with the dies, correct?
“A. Yes.
“Q. And this whipping you are talking about, describe that for the jury. What is that?
“A. As the bar is spinning, it comes out through the tube or the angle iron of, you know — it’s normally on angle iron. The part comes out. It starts spinning and it’s a smaller diameter. There is nothing there to stabilize it. So as it’s going through it sticks out three or four feet, five feet, and it will start a whip to it and start bending up. That’s why you never run a machine without a drive shaft guard on it because that will contain the whipping part inside.
“Q. It’s possible that when the rod comes through the exit tube that it would bend and miss the guard, isn’t it, because the guard doesn’t cover that?
“A. What was that?
“Q. It’s possible from your knowledge and working on these machines and designing these machines—
“A. Correct.
“Q. —that the rod would misalign from that tube and miss the guard if it were to bend, correct?
“A. Yes. If the tube is not set up correctly, it could miss that and it would start bending around in there somewhere.
“Q. And it would whip?
“A. Right. But it would go out straight a section before it would start to whip.”

Reporter’s transcript, at 511-12 (emphasis added), quoted in Wausau’s Brief, at 21-22.

Tesker notes that this testimony establishes only knowledge that the threader “could misfeed,” and, consequently, bend or whip, “if it is not properly setup.” Tesker’s Brief, at 18. It does not establish knowledge that the threader would “throw pieces of metal,” as Wausau alleges in its brief at page 21, or that “an injury will likely or probably result even if the unit is not properly setup.” Tesker’s Brief, at 18 (emphasis added). Moreover, according to Richard Tesker’s testimony, the “whipping” he observed occurred only when the threader was used in connection with “angle iron,” a situation not present the day of the accident. Indeed, there was no evidence indicating that Tesker knew that the threader would function — or malfunction— as it did on the day of the accident.

Ammons was operating the threader on the day of the accident without safety glasses. He noticed that pieces of metal were flying from the machine. As one shard flew past his head, he noticed that the floor around the threader was littered with such fragments. He stated:

“It was then I noticed metal — there was metal back there on the floor when I got there and there was metal coming out of the machine. There were rods coming out of the machine that were broken and jagged. There were rods that were coming out of the machine and breaking and pieces flying around.”

(Reporter’s Transcript, at 197.) In that connection, Ammons also testified:

“Q. [By counsel for Ammons] And now what did you do when you realized that the machine was malfunctioning?
“A. [By Ammons] Well, after awhile, when I realized that all the metal was definitely coming out of the machine and [there] wasn’t anything we could do about it, I told a co-employee that the machine was tearing the rods up and I was concerned about it.
“Q. Okay. What happened then?
“A. [He] went over there and he cut the machine off.... He cut the machine off and he went over to the maintenance board at Vulcan and wrote on the board: ‘Number three slinging rods.’ And he put quotation marks around ‘slinging rods.’
“Q. Then what happened?
“A. Well, the maintenance man responded to it. He came back to the machine and asked me — he had kind of a funny look on his face. He asked me what [was] wrong with it, and I told him. I said: ‘It’s tearing the rods up and it’s dangerous,’ and I motioned towards the metal back on the floor.
“Q. And before the day that this machine began malfunctioning, did you ever see this machine throw pieces of metal out of it before that day during the three weeks you were there?
“A. No, I did not.
“Q. And tell me how many times if you will — I know I may be getting ahead of myself but how many times did you see the machine, actually see the machine throw pieces of metal out of it?
“A. I saw five pieces of metal come out of that machine.
“Q. What happened after the leadman ... came back to the machine?
“A. He came back to the machine and he had a bottle of spray in his hands, a plastic bottle with spray and he sprayed — he never said anything to me. He sprayed the rods on the feed table and just thoroughly sprayed them and set the bottle of spray on the machine and cut the machine back on, and, as he was leaving, he said: ‘Be careful.’
“Q. At that point, did you go back to work?
“A. Yes.
“Q. All right. And, at that point — tell me what happened next if anything.
“A. Well, I was still concerned about the machine and I walked back over to it to see if it was, you know, still if it was, you know, throwing metal out of it. And I walked back over to it and I was standing about seven feet and I wasn’t actually looking at the machine. I was just standing there.
“Q. Okay. I’m sorry. How far were you from the machine?
“A. About seven feet and I was just standing there kind of catching my breath and I wasn’t actually looking at the machine. And I heard a rod start through it that makes the noise every time the rod goes through. It’s a mechanical noise. I heard the rod start through it and all the sudden it made a racket, one sharp burst of noise and that was when I felt the rod. It flew right out of the machine into my eye, a piece of metal.”

(Reporter’s Transcript, 197-205.)

Ammons’s description of the accident differs fundamentally from the phenomenon described by Richard Tesker. In particular, Richard Tesker’s testimony describes only the threader’s ability to “bend” or “whip” metal under certain conditions. It does not acknowledge a tendency to shatter metal and hurl the fragments for several feet, as Ammons described. Moreover, Wausau produced no evidence of similar incidents involving other machines or of any other accidents involving Tesker threaders.

In short, Wausau produced no substantial evidence of wantonness. The trial court did not err, therefore, in granting Tesker’s motion for a JML on the wantonness-based claims.

B. Assumption of the Risk

Wausau also contends that the trial court erred in allowing Tesker to amend its answer at the close of Wausau’s case-in-chief to assert the affirmative defense of assumption of the risk. Tesker responds that the issue was tried by the express consent of the parties, ánd that, in any case, Wausau has failed to show that it was prejudiced by the amendment.

Wausau concedes, as it must, that the Alabama Rules of Civil Procedure allow amendments to the complaint to conform to the evidence presented during trial. In particular, Ala. R. Civ. P. 15(b) states:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

(Emphasis added.) See also Ala. R. Civ. P. 54(c) (“every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings”).

“Rule 15(b) is not permissive: it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings.” Hawk v. Bavarian Motor Works, 342 So.2d 355, 358 (Ala.1977) (first emphasis added). “If a party objects to the introduction of evidence at the trial on the ground that it is not within the issues framed by the pleadings, he must show that he would be actually prejudiced in maintaining his action or defense on the merits by the admission of the evidence.” Id. (emphasis added).

‘We also note that a determination ‘as to whether [an] issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court’s sound discretion, which will not be altered on appeal absent an abuse [of that discretion].’ ” International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1214 (Ala.1992) (quoting McCollum v. Reeves, 521 So.2d 13, 16 (Ala.1987)). ‘“[WJhether pleadings are deemed to be amended in order to conform to the evidence presented is also a matter within the discretion of the trial court,’ and a decision in that regard will not be disturbed on appeal absent an abuse of discretion.” Adams, 613 So.2d at 1214 (quoting McCollum, 521 So.2d at 16-17).

Wausau concedes that it “tried the issue of contributory negligence,” but insists that it “did not thereby impliedly try the issue of assumption of the risk at the same time.” Wausau’s Brief, at 34. Additionally, Wausau contends that it was prejudiced by the amendment allowing Tesker to raise the affirmative defense of assumption of the risk because the amendment was not made until after Wausau’s case-in-chief. More specifically, it argues:

“Had [Wausau] known that Defendant Tesker intended to raise the affirmative defense of assumption of the risk, [Wau-sau] would have conducted discovery and the trial differently. [Wausau] would have brought up the issue during voir dire in order to determine any juror bias. Also, [Wausau] would have addressed the issue during [Wausau’s] opening statements. Further, [Wau-sau’s] counsel would have elicited testimony from Ronald Ammons concerning what he subjectively knew and appreciated moments before and at the time of his injury and could have focused on this evidence. However, [Wausau] was never given these opportunities.”

Wausau’s Brief, at 40 (emphasis added).

We disagree with this argument in a number of particulars. The defenses of contributory negligence and assumption of the risk differ in only one material respect — namely, the plaintiffs awareness of the danger. “With regard to assumption of the risk, ‘the plaintiffs state of mind is determined by [a] subjective standard.’” H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 27 (Ala.2002) (emphasis added) (quoting McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991)). Contributory negligence, by contrast, “involves an objective standard.” Id. We fail to see how anyone but Ammons could testify as to what Ammons subjectively knew.

This is a crucial consideration in light of Ammons’s thorough narrative of the details of the accident during Wausau’s casein-chief. The narrative leaves little to the imagination regarding Ammons’s comprehension of the situation at the time of the accident. It is also crucial in view of the trial court’s offer to allow Wausau to “reopen its case” to elicit just such testimony from Ammons. In that connection, the following colloquy occurred at the end of Wausau’s case-in-chief:

“[Ammons’s counsel] If we may be heard, the plaintiff has already put on their case-in-chief in this case before any assumption of the risk has been brought up and the elements of assumption of the risk are different than the elements of a customary [contributory-negligence] defense. Marginally, but ever so slightly, those elements—
“[The Court] Appreciation of danger is the only difference.
“[Ammons’s counsel] Right, your Honor. And we would object and we think the plaintiff is prejudiced by bringing that defense in at this late time.»
“[The Court] I will grant defendant’s oral request to amend their pleadings to include a defense of assumption of the risk. I will, however, if [the] plaintiff in light of that ruling wishes to reopen its case, if you have any additional evidence that you could present with regard to that issue — I mean, it boils down to ... Mr. Ammons’s testimony. He is the only one. The appreciation of risk goes down to him and he is available still. So, if there is any element of that that causes you [to] need to put on additional evidence, I will allow you to do so before [the] defendant puts on theirs, and/or you may use that as testimony if you— “[Counsel for Ammons] Your Honor, we reserve the right to do that as rebuttal.”

(Reporter’s Transcript, at 690-91 (emphasis added).)

Wausau ultimately declined the court’s invitation to recall Ammons to the witness stand or to present evidence otherwise tending to rebut the defense. This factor undermines Wausau’s prejudice argument. Considering the elements of this affirmative defense, the testimony of the injured party that was actually produced before Tesker’s motion to amend its complaint, the fact that the testimony was volunteered by Wausau, and Wausau’s decision not to present any further evidence as to that party’s subjective awareness of the danger, we conclude that Wausau has failed to demonstrate that it was prejudiced by the amendment. The trial court did not abuse its discretion, therefore, in allowing the amendment.

II. The Cross-Appeal— Case No. 1011212

Our resolution of the issues presented by case no. 1011213 renders it unnecessary to consider the issues presented by Tesker’s cross-appeal. Therefore, we pretermit any discussion of those issues.

III. Summary

The trial court did not err in entering a JML for Tesker on the wantonness-based claims. Neither did it abuse its discretion in allowing Tesker to amend its answer to assert the affirmative defense of assumption of the risk. Consequently, it did not err in denying Wausau’s motion for a new trial. The judgment of the trial court is, therefore, affirmed.

1011213 — AFFIRMED.

1011313 — DISMISSED AS MOOT.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ„ concur.

      . Wausau does not contend that evidence of assumption of the risk was insufficient to allow that defense to go to the jury.


author: HOUSTON, Justice.

text:
    WAL-MART STORES, INC. v. ANNISTON DEVELOPMENT COMPANY.
    1012070.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      David A. Lee and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.
    William J. Miller of Fite, Field & Miller, L.L.C., Anniston, for appellee.
   HOUSTON, Justice.

Wal-Mart Stores, Inc., appeals from a summary judgment entered in favor of Anniston Development Company (“ADC”) in an action to recover overpayment of rent, pursuant to a lease between Wal-Mart, as lessee, and ADC, as lessor. The overpayment was made more than three years before this action was filed. In its motion for a summary judgment ADC argued that the three-year statutory period of limitations for an action for money due by open or unliquidated account (Ala.Code 1975, § 6-2-37(1) -) had expired.

Wal-Mart contends that this is an action for money had and received, which is governed by the six-year statute of limitations (Johnson v. Life Ins. Co. of Alabama, 581 So.2d 438, 443 (Ala.1991); Mutual Bldg. & Loan Ass’n v. Watson, 226 Ala. 526, 147 So. 817 (1933)), or an action on the written lease agreement, which is also governed by the six-year statute of limitations. (Ala. Code 1975, § 6-2-34(9)). There is no dispute that the action was filed within the six-year limitations period.

To determine which statute of limitations applies, we must resolve the question whether Wal-Mart’s action was an action on an open and unliquidated account or an action for money had and received on the written lease contract.

The pertinent portions of the complaint are as follows:

“V.
“On October 31, 1992, in Calhoun County, Alabama, [Wal-Mart] paid rent to [ADC] pursuant to a lease contract between [Wal-Mart] and [ADC]. By mistake [Wal-Mart] overpaid [ADC] in the amount of $75,785.71.
“VI.
“On numerous occasions since October 31, 1992, [Wal-Mart] has demanded reimbursement of the above-mentioned overpayment from [ADC], but no part of it has been repaid.
“VIL
“[ADC is] Hable to [Wal-Mart] in the amount of $75,785.71.”

ADC filed an answer; that answer included as the “First Affirmative Defense” the following: “[ADC] states that this claim is barred by the statute of limitations.” ADC filed an amended answer, which included the following: “[ADC] avers that this claim for overpaid rent is a claim on an open account and is thereby barred by the three year statute of Hmita-tions.”

ADC also filed a motion for a summary judgment with a supporting memorandum, asserting that the three-year statute of Hmitations barred Wal-Mart’s claim. ADC cited only two cases in the memorandum: Panell v. Henslee, 756 So.2d 862 (Ala.1999), was cited for the proposition that if this cause of action is an action to recover on an open or unKquidated account, a summary judgment is proper (Pa-nell involved a legal-malpractice claim), and Union Naval Stores Co. v. Patterson, 179 Ala. 525, 529, 60 So. 807, 808 (1912), which held:

“A contract which is definite in all of its terms, when nothing, under the terms of the contract, is left for future adjustment, whether it be evidenced by a writing or not cannot be considered a mere open account.”

Wal-Mart leased from ADC property located in Anniston. The written lease agreement required Wal-Mart to pay a base rent plus a “percentage rent”; that percentage was calculated annually by multiplying Wal-Mart’s “gross sales,” a term that was specifically defined in the lease, by V0o. The lease agreement provided that the amount of the base rent would then be deducted from that amount to determine the percentage rent and that if Wal-Mart replaced any mechanical equipment originally installed on the premises by ADC Wal-Mart would receive a credit against the percentage rent for the unamortized costs of the mechanical equipment. On October 81, 1992, Wal-Mart paid ADC $176,502.11 as the percentage rent for the lease period ending on that date. Wal-Mart faded to deduct from the percentage rent for the lease period ending October 31,1992, all or a portion of the base rent it had paid that year. In opposition to the motion for a summary judgment, Wal-Mart filed an affidavit of the 16-year employee in the accounting department who had prepared the statement of gross sales and had calculated the rental for the Anniston Wal-Mart store for 1992. The employee swore that under the terms of the lease agreement Wal-Mart made no adjustments to the percentage rent paid to ADC for 1992 for depreciation of any capital improvements in the demised premises.

ADC contends that the amount of rent was open and unliquidated because the gross sales figure could not be known before the end of each year and ADC had a right to contest the amount Wal-Mart contended it owed as the percentage rent each year and the percentage rent could be adjusted by the unamortized cost of any mechanical equipment originally furnished by ADC and replaced by Wal-Mart during the year.

What ADC and the trial court failed to acknowledge is that Wal-Mart and ADC are fully bound by the price, as set out in the terms of the contract. Gross sales are fully defined in the lease. The percentage of gross sales to be paid as percentage rent is fully defined in the lease. The base rent is fully defined in the lease. The manner in which the base rent is deducted from the percentage rent is fully defined in the lease. Although in 1992 Wal-Mart replaced no mechanical equipment that had been originally installed by ADC, the method by which Wal-Mart could receive a credit against the percentage rent for the unamortized costs of replaced mechanical equipment was fully set out in the lease.

An open and unliquidated account is one where a provision of the contract is left open for further negotiations. Union Naval Stores, supra. The lease contract between Wal-Mart and ADC was fixed and settled in all its terms.

Wal-Mart is seeking to recover money had and received by ADC because of Wal-Mart’s mistake in allegedly overpaying ADC the rental it owed ADC for the fiscal year ending October 31, 1992. This action is not barred by Ala.Code 1975, § 6-2-37(1), and it is for the trier of the facts to determine what amount, if any, ADC owes Wal-Mart.

REVERSED AND REMANDED.

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

      . Section 6-2-37(1) provides:
      “The following must be commenced within three years:
      “(1) Actions to recover money due by open or unliquidated account, the time to be computed from the date of the last item of the account or from the time when, by contract or usage, the account is due.... ”