author: PER CURIAM.

text:
    Jimmy JONES, as personal representative of the estate of Joseph Jones, deceased v. Donald L. JONES. Donald L. Jones v. Jimmy Jones, as executor under the will of Joseph Jones, deceased.
    1010958, 1012186.
    Supreme Court of Alabama.
    June 27, 2003.

      L. Daniel Mims, Mobile, for appellant/cross-appellee Jimmy Jones.
    Donald L. Jones, pro se.
   PER CURIAM.

Joseph Jones, a resident of Mobile County, died on April 21, 2000. Joseph had executed a will; that will named his brother, Donald Jones, as executor, and his nephew, Jimmy Jones, as alternate executor. On March 6, 2001, Jimmy filed a petition in the Mobile Probate Court seeking to have Joseph’s will probated, to remove Donald as executor, and to appoint Jimmy as executor, and seeking an order requiring Donald or his lawyer to produce Joseph’s will for probate. Donald opposed Jimmy’s petition. Nevertheless, the probate court granted Jimmy’s petition, appointed Jimmy executor of Joseph’s estate, and ordered Donald or his lawyer to produce Joseph’s will. On April 16, 2001, the lawyer then representing Donald produced Joseph’s will to the probate court. On April 20, 2001, the probate court certified Joseph’s will for probate and issued letters testamentary to Jimmy. On June 22, 2001, Donald filed a motion to remove Jimmy as executor and to appoint Donald as executor; on July 24, 2001, Jimmy filed a motion to dismiss Donald’s motion. After a hearing, the probate court issued an order on August 29, 2001, denying Donald’s motion.

On October 10, 2001, Donald appealed to the Mobile Circuit Court from the probate court’s order of August 29, 2001. Jimmy moved to dismiss that appeal. Also on October 10, Donald filed in the probate court a claim against the estate. Donald claimed that he was entitled to the funds in various bank accounts that were in his, Joseph’s, and Frances Jones’s names; to $4,000, which Donald said he had advanced to the heirs of Joseph’s estate pursuant to Joseph’s will; to $600 in legal fees; to an antique sewing machine; to the deeds to his house and two lots in Brantley; and to the deed to property in Crenshaw County previously owned by another brother who was deceased. On October 17, 2001, Jimmy filed an objection to Donald’s claim.

After a hearing on November 26, 2001, the probate court transferred the estate proceeding to the Mobile Circuit Court for that court to consider Donald’s appeal from the probate court’s August 29, 2001, order denying his motion to remove Jimmy as the executor of the estate. The probate court reserved the authority to consider Donald’s claim against the estate and Jimmy’s objection to Donald’s claim. On December 28, 2001, the probate court entered an order; that order provides, in pertinent part, as follows:

“1. Claimant [Donald] has asserted a claim in this cause for: (a) the proceeds of two certificates of deposit at Whitney Bank in the sum of $20,888.00; (b) the proceeds of a savings account at Whitney Bank in the sum of $3,949.58; (c) the sum of $4,000.00 paid by Claimant from a checking account owned by the Decedent, Joseph Jones (‘Decedent’) as advances to the Decedent’s heirs and legatees in accordance with the Decedent’s last will and testament and not reimbursed to the Claimant; (d) the proceeds of a checking account maintained by the Decedent at Whitney Bank; (e) the sum of $600.00 paid by the Claimant to the Personal Representative [Jimmy] and other heirs of the Decedent for legal fees to initiate the probate of the Decedent’s last will and testament and this cause; (f) one Singer [brand] antique sewing machine once belonging to Claimant’s (and Decedent’s) mother; (g) deeds to Claimant’s home and two lots located in Brantley, Alabama; and (h) deed to 1.9 acres of land located in Cren-shaw County, Alabama.
“2. All of the bank accounts maintained by the Decedent at Whitney Bank were in the names of the Decedent, the Claimant and Frances Jones (mother of the Personal Representative).
“3. Prior to this cause being commenced, the Claimant obtained approximately one-half (]£) of the funds held in said certificates of deposit and bank accounts at Whitney Bank. Obviously, Claimant operated on his right as a signatory on these accounts in the same fashion as Frances Jones apparently did (according to the Claimant).
“4. Claimant alleges that Frances Jones was the agent or representative of the Personal Representative and/or the Estate. However, no evidence was submitted to support this allegation.
“5. The Personal Representative has not exerted any control over any funds held at Whitney Bank.
“6. The Court is of the opinion, and therefore concludes, that if Claimant has a claim against anyone in regards to the bank accounts at Whitney Bank, that person is Frances Jones, not the Personal Representative.
“7. It should be noted that ownership of remaining proceeds in the Decedent’s bank accounts that were at Whitney Bank has been the subject of litigation initiated by the Claimant against Frances Jones in the Circuit Court of Mobile County, Alabama (Case Number CV-2000-2616). The Circuit Court granted summary judgment in favor of Frances Jones and Frances Jones was determined to be the owner of the remaining proceeds of said accounts.
“8. The Court does not have jurisdiction over Frances Jones or her estate.
“9. The Court is of the opinion, and therefore concludes, that Claimant’s claims as they pertain to the bank accounts formerly maintained at Whitney Bank are due to be overruled and disallowed.
“10. It is undisputed that Claimant paid the sum of $4,000.00 to Frances Jones and the Decedent’s three (3) nephews. Claimant did this based upon the provisions of Article Two of the Decedent’s last will and testament. This payment occurred after the death of the Decedent and before this estate proceeding was commenced. The Claimant was not authorized to make said payment on behalf of the Estate.
“11. The Claimant has not requested return of the $4,000.00 from Frances Jones and the Decedent’s three (3) nephews.
“12. Notwithstanding the fact that the Claimant was not authorized to make the $4,000.00 payment and did so voluntarily, the Court is of the opinion, and therefore concludes, that it would be inequitable for the Claimant not to be reimbursed the amount paid or to have a claim for the amount paid.
“13. The Court is of the opinion, and therefore concludes, that the Claimant should seek the voluntary return of the $4,000.00 paid to Frances Jones and the Decedent’s three (3) nephews. If they fail to voluntarily return said sum of money to Claimant within thirty (30) days of the date of this Order, then the Claimant shall have a claim against the Estate for the amount not returned and a lien shall be impressed upon the Decedent’s real property to secure the payment of said amount. If Frances Jones and the Decedent’s nephews do not voluntarily return the said $4,000.00 (or only a portion thereof), Claimant shall file in this cause and in the real property recording division of the Court an affidavit substantiating the unpaid amount (not to exceed $4,000.00) and upon the filing of said affidavit as specified, Claimant shall have a lien on the Decedent’s former real property to secure the repayment of said amount.
“20. The Personal Representative testified that he had the deeds referenced in Claimant’s claim and that he would deliver possession of the deeds relating to Claimant’s home place to Claimant. The deed to property formerly belonging to Vaskil Jones was delivered by the Personal Representative to Claimant in open court.
“21. The Court is of the opinion, and therefore concludes, that the Claimant’s claims relating to the Vaskil Jones deed referenced in the Claimant’s claim is due to be overruled and disallowed.
“22. The Court is of the opinion, and therefore concludes, that the Personal Representative shall deliver possession of the deeds relating to the real property owned by Claimant within ten (10) days of the date of this Order, through their respective legal counsel.”

The probate court overruled and disallowed the remainder of Donald’s claim. On February 7, 2002, Jimmy appealed to this Court from the probate court’s order of December 28, 2001. That appeal was docketed as case no. 1010958.

On June 20, 2002, the circuit court dismissed Donald’s appeal from the probate court’s order of August 29, 2001. Also on June 20, 2002, the probate court dismissed a claim filed by Donald for reimbursement from Joseph’s estate of travel expenses he incurred in attending a hearing in the probate court on April. 17, 2001. On July 7, 2002, Donald appealed to this Court from that order. That appeal was docketed as case no. 1012186. On September 17, 2002, this Court consolidated the two appeals.

Both of these appeals are premature because the records before us do not indicate whether a final judgment has yet been entered as to this estate. The probate court’s December 28, 2001, order, from which Jimmy appealed, provides that Donald is to seek the voluntary reimbursement of the $4,000 from Frances Jones and his three nephews; provides that if Frances and his nephews do not voluntarily reimburse that amount, Donald must file an affidavit with the court substantiating the unpaid amount; and, finally, allows Donald to obtain a lien on real property formerly owned by Joseph upon the filing of that affidavit. The record does not indicate whether Frances or any of the nephews reimbursed any of the money to Donald, whether Donald ever filed the affidavit required by the court, or whether Donald ever obtained a lien on the property.

It is well settled that “[a]n appeal will not lie from an order or judgment which is not final.” Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala. 1978). See also Gilbert v. Nicholson, 845 So.2d 785 (Ala.2002). “An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001). Here, the probate court’s order of December 28, 2001, leaves open the question of additional recovery regarding whether Donald will be able to obtain voluntary reimbursement of the $4,000 or whether he will be entitled to a lien upon the filing of the requisite affidavit. The nonfinal nature of the December 28, 2001, order is underscored by the fact that the circuit court entered an order in June 2002 in the estate proceeding after Donald had appealed an earlier order.

The probate court’s June 20, 2002, order, from which Donald appealed, merely dismissed a claim for travel expenses and clearly is not a final judgment that will support an appeal.

Because neither of the appeals before us was taken from a final judgment, both are due to be dismissed.

APPEALS DISMISSED.

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


source: Caselaw Access Project

author: JOHNSTONE, Justice.

license: Public Domain

text:
    CENTRAL RESERVE LIFE INSURANCE COMPANY v. Joyce FOX.
    1011121.
    Supreme Court of Alabama.
    June 27, 2003.

      Alfred F. Smith, Jr., and Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for appellant.
    Sidney W. Jackson III and Mathew B. Richardson of Jackson, Foster & Graham, L.L.C., Mobile, for appellee.
   JOHNSTONE, Justice.

Central Reserve Life Insurance Company appeals the order by the trial court denying its motion to compel Joyce Fox to arbitrate her claims against Central Reserve. We reverse and remand.

On November 11, 1999, Joyce Fox applied for a health insurance policy with Central Reserve. The application signed by Fox contains the following provision:

“C. By signing below, I acknowledge that:
“(iii) Any disputes arising under the Policy are subject to an appeals procedure, including arbitration, which may be binding, depending on state law.”

On December 1, 1999, Central Reserve issued and delivered a health insurance policy to Fox. The policy includes an “Alabama Coverage Rider,” which provides, in pertinent part:

“ADMINISTRATIVE REMEDIES “ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE POLICY, SUCH AS DISPUTES ABOUT THE DENIAL OF A CLAIM, ARE SUBJECT TO CERTAIN ADMINISTRATIVE PROCEDURES THAT MUST BE EXHAUSTED BY THE INSURED PERSON (INSURED) PRIOR TO THE INSURED PURSUING ANY OTHER REMEDY THAT MAY BE AVAILABLE. THESE REQUIRED ADMINISTRATIVE REMEDIES ARE (1) APPEAL OF DECISION; AND (2) BINDING ARBITRATION.
“1. APPEAL OF DECISION “APPEAL — TECHNICAL MANAGER (TM)
“A. IF CRL [(Central Reserve Life)] MAKES A DECISION WHICH THE INSURED WISHES TO APPEAL, A WRITTEN REQUEST MUST BE SENT WITHIN SIXTY (60) DAYS OF THE DATE OF CRL’S WRITTEN NOTICE TO THE INSURED TO:
“APPEAL — TECHNICAL MANAGER
“CENTRAL RESERVE LIFE INSURANCE COMPANY
“17800 ROYALTON ROAD
“STRONGSVILLE, OHIO 44136-5197
“2. ARBITRATION
“AFTER EXHAUSTION OF THE APPEAL OF DECISION PROCEDURES, ANY DISPUTE ARISING OUT OF OR RELATED TO THE POLICY THAT REMAINS SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH APPLICABLE FEDERAL OR STATE LAWS AND THE INSURANCE DISPUTE RESOLUTION PROCEDURES, AS AMENDED, AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
“ALL ARBITRATION PROCEEDINGS WILL BE CONDUCTED IN THE COUNTY OF RESIDENCE OF THE INSURED UNLESS ANOTHER LOCATION IS MUTUALLY AGREED UPON BY BOTH PARTIES.
“CRL WILL PAY THE COSTS OF ARBITRATION SUCH AS THE FEES ASSESSED BY THE AMERICAN ARBITRATION ASSOCIATION AND ANY FEES PAID TO THE ARBITRATOR. ALL COSTS FOR REPRESENTATION OF THE INSURED, SUCH AS ATTORNEYS’ FEES, WILL BE THE SOLE RESPONSIBILITY OF THE INSURED.”

On July 3, 2001, Fox sued Central Reserve for breach of contract and for negligent hiring, training, and monitoring of its employees. She alleged that Central Reserve wrongfully refused to pay hospital and doctor expenses she incurred during her hospitalization from December 10, 1999 through December 14, 1999. On August 23, 2001, Central Reserve moved to compel Fox to comply with her insurance policy by submitting her claims to arbitration. In support of this motion, Central Reserve submitted evidentiary material.

On December 4, 2001, Fox opposed the motion to compel arbitration and submitted evidentiary materials. She claimed that Central Reserve had not shown that the contract substantially affected interstate commerce. She further claimed that Central Reserve had not complied with the condition precedent of sending her written notice of the decision to deny her claim. In response to Fox’s opposition, Central Reserve filed an affidavit by Peggy St. Clair, a “Senior Claim Technician for Central Reserve.” St. Clair stated that Central Reserve was a corporation organized under the laws of the State of Ohio. She stated that Central Reserve “ha[d] its principal place of business in the State of Ohio.” St. Clair stated that the monthly premium for Fox’s policy was automatically deducted from Fox’s Alabama bank account and was transferred to the Ohio bank account of Central Reserve. She stated that Fox and her husband had on occasion called the Ohio offices of Central Reserve to inquire about the status of various claims. St. Clair stated that Central Reserve had mailed “numerous different materials to Mrs. Fox at her address in Alabama, including the insurance certificate, riders to the certificate, correspondence, and Explanations of Benefits, or ‘EOB’s.’ ” St. Clair further stated:

“Two different providers ... submitted claims totaling $12,481.62 for services rendered to Mrs. Fox [from December 10 through December 14, 1999]. Pursuant to the provisions of Mrs. Fox’s insurance certificate, CRL has paid a total of $6,165.07 in benefits on these claims.
“5. CRL mailed an EOB to Mrs. Fox for each claim it processed, which showed, among other things, the total amount of the claim from the particular provider, the amount of benefits paid by CRL on the claim, the co-pay and deductible amounts, if any, and the balance for which Mrs. Fox would be responsible. Copies of the EOB’s mailed relating the claims for benefits arising out of Mrs. Fox’s treatment in December 10-14, 1999 are attached to this affidavit as Exhibits A-C. The attached EOB’s were originally mailed to Mrs. Fox on November 11, 2000, June 2, 2001, and June 19, 2001.
“... [T]he insured is responsible for initiating any appeal by making a written request within 60 days of the date of CRL’s written notice to the insured of the decision. Based on my review of CRL’s records, CRL has no record of Mrs. Fox ever making such a request within 60 days of the date of any Explanation of Benefits.... ”

After a hearing, the trial court summarily denied the motion to compel arbitration.

The denial of the motion to compel arbitration cannot be justified on the ground that the contract did not evidence a transaction that substantially affected interstate commerce in this case. The evidence submitted by Central Reserve establishes that the transaction did substantially affect interstate commerce. Mason v. Acceptance Loan Co., 850 So.2d 289 (Ala.2002), and Southern United Fire Ins. Co. v. Knight, 736 So.2d 582 (Ala.1999). See also Citizens Bank v. Alafabco, Inc., 589 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). Therefore, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs this case and preempts the Alabama statute, § 8-1-41(3), Ala.Code 1975, prohibiting specific enforcement of predispute arbitration agreements.

“ ‘[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Accord Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002), and Ex parte Lovejoy, 790 So.2d 933, 937 (Ala.2000)’. “ ‘When deciding whether parties agreed to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.’ ” Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

“If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written.” Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000). “ ‘Whether a provision in a contract is a condition precedent depends, not upon formal words, but upon the intent of the parties, to be deduced from the whole instrument.’ ” Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 752 (Ala.2002) (quoting Fidelity & Cas. Co. of New York v. DeLoach, 280 Ala. 497, 502, 195 So.2d 789, 793 (1967)). “Ordinarily, ‘failure to comply with conditions precedent ... prevents an action by the defaulting party to enforce the contract.’ ” UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 369, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999) (quoting 14 Cal. Jur.3d, Contracts § 245, p. 542 (3d ed.1974)).

The dispositive issue on appeal is whether the “Alabama Coverage Rider” imposes a condition precedent on the right of Central Reserve to arbitrate and whether a failure by Central Reserve to satisfy the alleged condition precedent renders the arbitration agreement unenforceable. Fox relies on the language in the rider which reads, in pertinent part:

“A. IF CRL [Central Reserve Life] MAKES A DECISION WHICH THE INSURED WISHES TO APPEAL, A WRITTEN REQUEST MUST BE SENT WITHIN SIXTY (60) DAYS OF THE DATE OF CRL’S WRITTEN NOTICE TO THE INSURED TO....”

This language is not a condition precedent on the right to arbitrate but is, rather, a statement of a deadline for Fox’s right and requirement to appeal a decision by Central Reserve. The Explanations of Benefits (“EOBs”) mailed to Fox by Central Reserve reveal on their faces that and why Central Reserve did or did not pay certain fees and expenses incurred by Fox. The EOBs constituted “decision[s]” by Central Reserve which Fox could have appealed. While Central Reserve does have another form different from an EOB for notifying an insured of a decision on a claim, this other form is designed only for a total denial of the claim. This different form does not eliminate the status of an EOB as notice of a decision denying a claim in whole or in part.

The “Alabama Coverage Rider” expressly imposes on the insured’s right “to pur-su[e] any other remedy that may be available” the conditions precedent that the insured appeal the decision and then, if not satisfied, arbitrate the dispute. While the absence of a written notice of a decision would forestall the running of the insured’s 60 days for requesting the appeal and would thereby spare the insured the stricture of that deadline, the absence of a written notice of a decision would not eliminate either the appeal or the arbitration as a condition precedent to the insured’s right to “pursu[e] any other remedy that may be available.”

Regardless of whether Fox has missed her deadline for appeal, she has not satisfied either condition precedent to her “pursuing any other remedy that may be available.” However, by moving and insisting that Fox’s claim be arbitrated, Central Reserve has waived the condition precedent that she appeal. See Shears v. All States Life Ins. Co., 242 Ala. 249, 257, 5 So.2d 808, 815-16 (1942).

Accordingly, we hold that the arbitration agreement in the “Alabama Coverage Rider” is enforceable against Fox. Consequently, we hold that the trial court erred in denying the motion of Central Reserve to compel arbitration. Therefore, we reverse the order by the trial court, and we remand the cause for entry of an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, C.J., dissents.


author: SEE, Justice.

text:
    WOLFF MOTOR COMPANY et al. v. Stephen M. WHITE and Linda K. White.
    1011845.
    Supreme Court of Alabama.
    June 27, 2003.

      Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellants.
    Robert S. Presto of Caffey, Presto & Associates, P.C., Brewton, for appellee.
   SEE, Justice.

Wolff Motor Company, Pete Wolff III, and Joe Powell (hereinafter referred to collectively as “Wolff’) appeal from the trial court’s denial of their motion to compel arbitration of the claims filed against them by Stephen M. White and Linda K. White. The trial court denied Wolffs motion to compel arbitration on the ground that the Whites’ purchase from Wolff of a vehicle used to transport automobiles did not substantially affect interstate commerce. We reverse and remand.

Wolff Motor Company buys vehicles in Florida, Alabama, Louisiana, Georgia, and Mississippi and resells them to buyers in Alabama and other surrounding states. Wolff has its principal place of business in Evergreen, Alabama. Wolff purchased a 1994 GMC 3500 Rollback tow truck (“the car-hauler”) from Musick Enterprises d/b/a Suncoast Wholesale in Pensacola, Florida. Wolff used the car-hauler to haul cars in Florida, Mississippi, Georgia, and Alabama.

On October 27, 2000, Stephen White negotiated the purchase of the car-hauler from Wolff. Stephen White told Wolff that he operated a wrecker business in Flomaton, Alabama, and in Century, Florida, and that he intended to use the car-hauler to haul cars for his business.

Stephen White directed Wolff to complete the paperwork for the purchase of the car-hauler showing Stephen White and/or Linda White as the buyer. Wolff obtained the Whites’ credit information from Equifax Credit Information Services in Atlanta, Georgia. Wolff attempted to obtain financing for the Whites through Firstar Bank, N.A., in Oshkosh, Wisconsin. Firstar declined to provide financing, but Wolff ultimately was able to secure a loan through the Escambia County Bank in Alabama by which the Whites could purchase the car-hauler. Wolff Motor Company and Stephen White executed an arbitration agreement in connection with the sale and purchase of the car-hauler.

On February 26, 2002, the Whites sued Wolff, alleging negligent, reckless, wanton, and/or intentional misrepresentation or suppression of material facts concerning the condition of the car-hauler at the time of the sale. The gravamen of the Whites’ complaint is that the 1994 GMC 3500 Rollback tow truck they purchased from Wolff was manufactured and marketed as a commercial car-hauler but has proven unsuitable for that use; the Whites allege that they have been damaged because they have had to have the truck repaired, causing their business to lose money while the car-hauler was out of service during those repairs. Wolff moved to compel arbitration of the Whites’ claims against it. The trial court denied Wolffs motion, finding that its sale of the car-hauler to the Whites did not substantially affect interstate commerce. Wolff appeals.

“This Court reviews de novo a trial court’s denial of a motion to compel arbitration.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000). “A ‘party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce.’ ” Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)(quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)). The party moving for arbitration must “ ‘produce some evidence which tends to establish its claim.’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.l995)(opinion on application for rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)).

The parties agree that Stephen White signed an arbitration agreement when he purchased the car-hauler from Wolff Motor Company. Wolff argues that this transaction is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), because, it argues, the car-hauler, by definition, is an instrumentality of interstate commerce and the sale of the car-hauler therefore affects interstate commerce. The Whites argue, however, that Wolff has not demonstrated that the sale of the car-hauler to the Whites affected interstate commerce. The Whites also argue that even if the transaction affects interstate commerce, Mrs. White cannot be compelled to arbitrate her dispute with Wolff because she did not sign the arbitration agreement and she was not a party to the actual sale. Finally, the Whites argue that Joe Powell, an employee of Wolff Motor Company, may not compel the Whites to arbitrate their dispute with him concerning the car-hauler because he is not a party to the arbitration agreement.

Section 2 of FAA 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 “has the effect of preempting conflicting Alabama law, in particular Ala. Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.” Homes of Legend, 776 So.2d at 745 (footnote omitted). See also Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 279, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)(holding that the FAA controls in all cases in which the “ ‘transaction’ in fact involve[s] interstate commerce”). The FAA “provides for ‘the enforcement of arbitration agreements within the full reach of the Commerce Clause.’ ” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 2040 (2003)(quoting Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). It is well established that Congress can regulate three broad categories of activity pursuant to its commerce power: (1) the use of the channels of interstate commerce; (2) the in-strumentalities of interstate commerce or persons or things in interstate commerce; and (3) those general activities having a substantial effect on interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824 So.2d 668, 674 (Ala.2001)(plurality opinion).

Wolff argues that the trial court erred when it relied on this Court’s decision in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), to determine that the sale of the car-hauler to the Whites by Wolff Motor Company did not involve interstate commerce. Wolf argues that “the very nature of the vehicle which was purchased in this case invokes the application of the FAA to this transaction.” We agree.

In Citizens Bank, the Supreme Court of the United States held that Sisters of the Visitation expressed an “improperly cramped view of Congress’ Commerce Clause Power,” that “appears to rest on a misreading of our decision in United States v. Lopez, 514 U.S. 549 (1995). Lopez did not restrict the reach of the FAA or implicitly overrule Allied-Bruce Terminix Cos.[ v. Dobson, 513 U.S. 265 (1995) ].” 539 U.S. at 58, 123 S.Ct. at 2041. In Citizens Bank, the Supreme Court of the United States rejected the test this Court adopted in Sisters of the Visitation — that the individual transaction at issue must itself have a “substantial effect” on interstate commerce in order to trigger the application of the FAA. The Supreme Court reaffirmed the rule that “Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ ” 539 U.S. at 56-57, 123 S.Ct. at 2040 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)).

In Citizens Bank, Alafabco, a construction company, sued Citizens Bank alleging, among other causes of action, fraud and breach of fiduciary duty. Alafabco argued in its complaint that it “detrimentally ‘ “incurred] massive debt” ’ because [Citizens Bank] had unlawfully reneged on its agreement to provide capital sufficient to complete” one of Alafabco’s construction projects. 539 U.S. at 54, 123 S.Ct. at 2039. Alafabco’s loan agreement with Citizens Bank contained an arbitration clause. Citizens Bank moved to compel arbitration, but Alafabco argued that its transaction with Citizens Bank lacked a sufficient nexus with interstate commerce to establish the applicability of the FAA to the.dispute. The United States Supreme Court held that the transaction at issue sufficiently “involved commerce” to trigger application of the FAA “for at least three reasons”: (1) Alafabco engaged in business throughout the southeastern United States; (2) the transaction involved a business that purchased substantial quantities of goods that have moved in interstate commerce; and (3) the “general practice” of the transaction at issue was of the sort subject to Congress’s Commerce Clause power. 539 U.S. at 57-58, 123 S.Ct. at 2040-41.

For each of the three reasons stated in Alafabco, and for a fourth reason, the transaction in this case sufficiently “involves commerce” to fall within the scope of the FAA. First, this case involves interstate commerce because both of the commercial enterprises in this case regularly deal in interstate commerce. Although the car-hauler at issue in this case was sold in Alabama by an Alabama resident to an Alabama resident, both Wolff Motor Company and the Whites regularly do business throughout the Southeast. Wolff Motor Company buys vehicles in Florida, Alabama, Louisiana, Georgia, and Mississippi, and the Whites conduct business in Alabama and Florida. In Citizens Bank, the Supreme Court of the United States found that the transaction at issue there fell within the scope of the FAA because “Alaf-abco engaged in business throughout the southeastern United States.” 539 U.S. at 57, 123 S.Ct. at 2040.

Second, this transaction involves interstate commerce because Wolff Motor Company purchased substantial quantities of goods that have moved in interstate commerce. In this case, Wolff Motor Company engaged in interstate transactions in order to help the Whites finance their purchase of the car-hauler. Wolff regularly purchases vehicles in interstate commerce. “[T]he Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce.” Citizens Bank, 539 U.S. at 57, 123 S.Ct. at 2040 (citing Katzenbach v. McClung, 379 U.S. 294, 304-05, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964)). The FAA certainly reaches transactions involving vehicles that have moved in interstate commerce and transactions that involve the purchase of goods that have moved in interstate commerce.

Third, this case involves commerce because the “general practice” of the transaction at issue was of the sort subject to Congress’s Commerce Clause power. The Whites purchased the car-hauler from Wolff Motor Company for use in their wrecker business, which operates in both Alabama and Florida. Pete Wolff III stated in his affidavit that he purchases vehicles for Wolff Motor Company in Florida, Alabama, Louisiana, Georgia, and Mississippi. He also stated that he has sold vehicles to people who live in states other than Alabama. The automobile business in the aggregate involves interstate commerce. See United States v. Evans, 272 F.3d 1069, 1080 (8th Cir.2001)(“the transaction — the purchase of an automobile from a commercial used car dealer — is sufficient, by itself, to have an effect on interstate commerce”). Moreover, the Whites operate a wrecker company, and in the aggregate the business of towing involves interstate commerce. See Gray v. Swan-ney-McDonald, Inc., 436 F.2d 652, 653 (9th Cir.1971)(holding that the towing industry’s cumulative effect on interstate commerce is substantial).

Fourth and finally, as Wolff argues, a car-hauler is an instrumentality of commerce. “The automobile, if anything, is the paradigm of modern interstate commercial activity in the United States. ... ‘[C]ars are themselves in-strumentalities of commerce.’ ” United States v. McCoy, 323 F.3d 1114, 1129 (9th Cir.2003)(quoting United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995)). See also United States v. Ballinger, 312 F.3d 1264, 1269 (11th Cir.2002)(“The in-strumentalities of interstate commerce are those ‘persons or things ’ that move in interstate commerce, including all cars and trucks, ships, aircraft and anything else that travels across state lines, as do interstate shipments.”); United States v. Turner, 301 F.3d 541, 543 (7th Cir.2002)(“Instrumentalities, persons or things in interstate commerce, include railroads, aircraft, and trucks.”); United States v. McHenry, 97 F.3d 125, 126 (6th Cir.1996)(“ ‘cars are themselves instru-mentalities of commerce’ ”); United States v. Bishop, 66 F.3d 569, 588-90 (3d Cir.1995)(“[M]otor vehicles are ‘the quintessential instrumentalities of modern interstate commerce.’ ... Commuters, salespeople and haulers rely upon motor vehicles daily to maintain the flow of commerce -”). Because Congress’s Commerce Clause power reaches directly to the instrumentalities of commerce, a transaction involving the sale of an instrumentality of commerce — in this case a car-hauler^ — satisfies the FAA’s “involving commerce” test.

For all these reasons, we agree with Wolff that the trial court erred when it denied the motion to compel arbitration.

The Whites have argued that even if Wolff is entitled to arbitrate this dispute, Linda White, as a nonsignatory to the arbitration agreement, cannot be forced to arbitrate her claims against Wolff. See Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526-27 (Ala.2001); Ex parte Dickinson, 711 So.2d 984 (Ala.1998); Tom Williams Motors, Inc. v. Thompson, 726 So.2d 607 (Ala.1998). Wolff responds that Linda White cannot seek the benefits of the contract and at the same time avoid the agreement’s arbitration provision. See Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998). We agree with Wolff.

In Infiniti of Mobile, Inc. v. Office, 727 So.2d 42, 47-48 (Ala.1999), this Court explained that a nonsignatory to an automobile purchase agreement cannot assert fraud and breach-of-warranty claims based on the agreement and at the same time choose to avoid the arbitration provision in the agreement. Linda White’s claims depend entirely on her status as a third-party beneficiary to her husband’s contract with Wolff Motor Company; therefore, Wolff is entitled to compel her to arbitrate all of her claims that arise from the sale of the car-hauler.

Finally, the Whites argue that Joe Powell, an employee of Wolff Motor Company, may not compel them to arbitrate their claims against him because he did not sign the arbitration agreement. See Jack Ingram Motors, Inc. v. Ward, 768 So.2d 362 (Ala.l999)(holding that an arbitration provision that limited its scope to the buyer/lessor and dealer was not broad enough to cover nonsignatory Primus Automotive Financial Services, Inc.). Wolff argues that Joe Powell is an employee of Wolf Motor Company; he is not an unrelated codefendant seeking to become a third-party beneficiary to the arbitration agreement. This Court has stated: “ ‘A party should not be able to avoid an arbitration agreement merely by suing an employee of a principal.’ ” Stevens v. Phillips, 852 So.2d 123, 129 (Ala.2002)(quoting Monsanto Co. v. Benton Farm, 813 So.2d 867, 873-74 (Ala.2001), quoting in turn Ex parte Gray, 686 So.2d 250, 251 (Ala.1996)). Therefore, because the Whites must arbitrate their claims against Wolff Motor Company and Pete Wolff III, they also must arbitrate their claims against Powell.

We reverse the trial court’s order denying Wolffs motion to compel arbitration and remand for the trial court to enter an order staying the proceedings and compelling the Whites to arbitrate their dispute with Wolff Motor Company, Pete Wolff III, and Powell.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

LYONS, J., concurs in the result.

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

      . The Whites stated in their complaint:
      "During the negotiations concerning the potential purchase of the foregoing vehicle, [Wolff was], at all times, possessed of full knowledge concerning the state of mechanical disrepair within which the vehicle existed, which caused the same to be unfit for the purposes for which it was manufactured and marketed.

      "As a result of the purchase and ownership of the vehicle, the [Whites] have been damaged through the expenditure of significant repair bills and loss of income while the vehicle was forced to be taken out of service for major repairs.”

      . The Whites rely on the test this Court adopted in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). They argue that they are not required to arbitrate their dispute with Wolff because, they say, the transaction does not substantially affect interstate commerce. The Whites argue that Wolff Motor Company is an Alabama corporation, that all of the defendants are Alabama residents, that Wolff Motor Company does business in Alabama, that the Whites are residents of Alabama, that the Whites maintain a business office only in Alabama, that the car-hauler is titled in Alabama, that the contracts relating to the sale of the car-hauler were signed in Alabama, that the car-hauler was financed in Alabama, that no special tools were purchased for this transaction from out of state, that all the workers involved in the transaction are employed in Alabama, that none of the parties has affiliations with out-of-state entities that participated in this transaction, and that after he purchased the car-hauler Stephen White drove it to Flomaton, Alabama, without crossing any state lines.

      . The United States Court of Appeals for the Sixth Circuit explained in United States v. McHenry, 97 F.3d 125, 126-27 (6th Cir.1996):
      "In describing Congress's power over in-strumentalities, 'or persons or things in interstate commerce,’ the Lopez Court [United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)] noted that regulation and protection are permissible 'even though the threat may come only from intrastate activities.’ 514 U.S. at [559], 115 S.Ct. at 1629.... Although it might seem anomalous for the Court to have allowed regulation of activities involving instrumentalities that, even in the aggregate, do not substantially affect interstate commerce, such a result is perfectly in keeping with the purposes underlying the Commerce Clause. Instrumentalities of interstate commerce — e.g., cars, trains, airplanes, see [United States v.] Bishop, 66 F.3d [569,] 588 [(3d Cir.1995)] — retain the inherent potential to affect commerce, unlike other objects of regulation. Thus, even if a particular activity involving an instrumentality might not, through repetition elsewhere, substantially affect interstate commerce during the moment of regulation, the activity still falls within Category Two because the object of regulation contains the unique capacity to affect commerce at some future point in time.”

      . Each of these reasons, standing alone, is sufficient to demonstrate that the transaction involves interstate commerce and falls within the ambit of the FAA.

      . Indeed, the car-hauler has itself moved in interstate commerce. Pete Wolff III, the owner of Wolff Motor Company, stated in his affidavit that he purchased the car-hauler from a company in Florida. He also stated that he obtained the Whites’ credit information from Equifax Credit Information Services in Atlanta, Georgia, and that he initially tried to obtain financing for the Whites with Firstar Bank, N.A., in Oshkosh, Wisconsin.

      . The Whites argue that for us to conclude that the Whites used the car-hauler in interstate commerce we must rely on the "contemplation of the parties” test the Whites say the United States Supreme Court rejected in Allied-Bmce Terminix Cos. v. Dobson. The Whites argue that Wolff relies on Stephen White's statement when he purchased the car-hauler that White intended to use the car-hauler to haul cars from Florida. It is not that statement on which this Court relies; the Whites have sued Wolff precisely because the commercial car-hauler they purchased from Wolff Motor Company was "unfit for the purposes for which it was manufactured and marketed” (Complaint ¶ 6) and the Whites seek damages because as a result they were unable to engage in commerce with the commercial car-hauler. Such an inability to engage in interstate commerce is itself an effect on interstate commerce. See, e.g., United States v. King, 276 F.3d 109, 112 (2d Cir.2002)(holding that Congress may regulate conduct that obstructs interstate commerce); United States v. Wiseman, 172 F.3d 1196, 1214 (10th Cir.1999)(observing that 18 U.S.C. § 1951(a), a part of the Hobbs Act, punishes anyone who in any way obstructs, delays, or effects commerce, and that Congress’s ability to prevent the obstruction of commerce is an exercise of its Commerce Clause power).

      .Relying on the holding in Mostella v. N & N Motors, Inc., 840 So.2d 877 (Ala.2002), that the sale of a used car was not per se a transaction that substantially affects interstate commerce, the Whites argue that this transaction does not involve interstate commerce.
        Mostella held that the facts presented by N & N Motors fell "short of proving that the transaction in this case was one that substantially affected interstate commerce.” 840 So.2d at 881. Mostella applied the Sisters of the Visitation test for determining whether the transaction involved interstate commerce, 840 So.2d at 880, and thus is no longer good law.
      Wolff also concedes that in Tefco, 793 So.2d at 759-60, and Keel Motors, Inc. v. Tolbert, 821 So.2d 963, 964-65 (Ala.2001), this Court held that the sale of a used car for personal, local use did not substantially affect interstate commerce. Both Tefco, 793 So.2d at 759, and Keel, 821 So.2d at 964 (citing Tefco), conflict with Citizens Bank, 539 U.S. at 57-58, 123 S.Ct. at 2040-41, and, therefore, are no longer good law.

      . In Gray v. Swanney-McDonald, Inc., 436 F.2d at 653, the United States Court of Appeals for the Ninth Circuit held:
      "The provision of towing and road services for the national highway system is essential to the free flow of traffic on that system. The fact that such services are a small part of appellee's business renders them no less important to interstate commerce. Even if appellee's contribution to interstate commerce was, by itself, quite small, we cannot ignore the cumulative effect that the many small companies in appellee’s position have upon commerce between the states. By regularly servicing vehicles on the Interstate and U.S. Highways, appellee has become part of an industry the cumulative effect of which upon interstate commerce is substantial. ... The fact that any given, or every given, company's contacts with interstate commerce are extremely small is irrelevant.”

      . Linda White asserts claims of suppression and misrepresentation.

      . The Whites make no similar argument in regard to Pete Wolff III because he is a signatory to the arbitration agreement.


author: CRAWLEY, Judge.

text:
    STATE EMPLOYEES INJURY COMPENSATION TRUST FUND v. Shirley SHADE.
    2010852.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2003.
    Certiorari Denied June 13, 2003 Alabama Supreme Court 1020987.

      William H. Pryor, Jr., atty. gen., and Mose Stuart, asst. atty. gen., Department of Finance, for appellant.
    Benjamin E. Pool, Montgomery, for ap-pellee.
   CRAWLEY, Judge.

The State Employees Injury Compensation Trust Fund (hereinafter referred to as “the Trust Fund”) appeals from the Montgomery County Circuit Court’s modification of its determination of the vocational-disability rating of Shirley Shade (hereinafter referred to as “the worker”). We reverse and remand,

On February 6, 1996, the worker, then a laboratory technician for the Alabama Department of Forensic Sciences, suffered an on-the-job injury to her back that the Trust Fund determined was compensable. As a result of her injury, the worker was treated by Dr. Warner Pinchback, who performed two surgeries on the worker’s back. On November 20, 1998, Dr. Pinch-back referred the worker to Rehab Associates for a functional capacity evaluation (hereinafter referred to as an “FCE”). In a report dated November 30, 1998, Rehab Associates determined that the worker’s FCE results indicated that she met the guidelines for sedentary type work, but that those results were “not felt to be reflective of maximal functional abilities based on ... discrepancies ... which included symptom exaggeration, inconsistent movement patterns and an overperception of pain and disability.” On April 1, 1999, Dr. Pinchback determined that, as a result of a simulated work environment ability test (hereinafter referred to as a “SWEAT test”) performed on the worker on March 16, 1999, the worker would be best suited for sedentary type work with a lifting restriction of five pounds. Dr. Pinchback further determined that the worker “ha[d] about a 51% permanent total body impairment as a result of her lower back injury.”

On May 19, 1999, Dr. Roger Kemp referred the worker to Dr. Karl Kirkland by for a psychological evaluation to assess the viability of future surgery on the worker’s back. On June 1, 1999, Dr. Kirkland issued a report in which he stated, in pertinent part:

“This patient was assessed using the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Pain Patient Profile, and the West Haven-Yale Multidimensional Pain Inventory (WHYMPI). Test results reveal a valid profile. Results are characterized by a great deal of somatization, depression, hypochondria-sis, anger, hostility, and some exaggeration of symptomotology. This patient has settled into a permanent, chronic pain status. It is likely that her pain has functional autonomy. The problem is that there are multiple personality and functional variables present in this patient that are likely to add significantly to her self-report of pain. This examiner defers the medical assessment to the physicians involved. It would appear that she has been rated as having significant physical reasons to have some symptomotology based on Dr. Pinchback’s letters. However, psychological test results reveal that her overall situation is extremely complicated and exacerbated by psychological symptoms. If surgery, for example, was optional in this patient it is suggested that surgery be avoided because of the above variables. She is not likely to respond positively to further surgical intervention ....
“Obviously these results do not rule out the presence of true organic causes for some of her pain. This report simply documents that there are additional variables that are likely to explain a great deal of amplified pain responses and difficulties in treating this individual because of interpersonal problems.”

In a June 30, 1999, progress note, Dr. Kemp listed the following impressions: “1. Failed back syndrome[;] 2. History of lumbar radiculitis[;] 3. History of somatiform conversion personality disorder[;] 4. Hypo-chondriacal personality disorder[;] 5. Depression[; and] 6. Possible paranoid personality disorder.”

On July 30, 1999, Dr. Roland Rivard, to whom the worker was a referred by Dr. Pinchback, performed an independent medical examination (hereinafter referred to as an “IME”) on the worker. On that same day, in a letter addressed to Dr. Pinchback, Dr. Rivard stated, in pertinent part:

“I will now address the impairment rating. According to the [American Medical Association] Guides to the Evaluation of Permanent Impairment, fourth edition, before a judgment regarding impairment is made, it must be shown that the problem has been present for a period of time, is stable, and is unlikely to change in future months in spite of treatment. The [worker] has reached that stage ([maximum medical improvement] ) and therefore qualifies for impairment rating.
“In order to establish an impairment rating for the spine, the Guide designates two approaches. One component, which applies especially to [the worker’s] traumatic injuries, is called the ‘Injury Model’ The other component is the ‘Range of Motion Model.’ The Range of Motion Model should be used only if the Injury Model is not applicable, or if more clinical data are needed to characterize the [worker’s] impairment. In this case, more data are not needed and the Injury Model does apply. Therefore I will utilize the Injury Model.
“She has 2 spinal fusions at 2 levels. “Listed on Table 70, page 108 of the Guide are the descriptions of various conditions with the corresponding DRE [diagnosis-related estimate] categories. She corresponds to the description of previous spine operation without loss of motion segment integrity or radiculopa-thy, for which the Guide has determined that the Category II, III, or IV of the Injury Model.
“Using the range of motion model as a differentiator I must conclude that her condition corresponds to DRE lumbosa-cral Category IV for which the percentage of partial permanent impairment is 20% of the whole person.
“Therefore it is my estimation that she has an impairment of 20% of the whole person due to the condition of her lumbar spine.
“During the physical examination she has shown a strong pattern of symptom magnification, 4 of the Waddell types being positive and the Fabere’s test being positive bilaterally. This attitude may be due to psychological problems, psychosocial problems, or may be an attempt at symptom magnification conscious or not in order to obtain secondary gain.' Each and every one of the ergometric tests were invalid.
“Therefore due to the strong pattern of symptom magnification and due to the ergometric tests being invalid I am unable to be specific about her work limitations. However, I have observed one objective sign during the physical examination: muscle spasms in the left parav-ertebral area which seems to confirm the presence of pain in the lumbar area. Therefore I must conclude that she probably has significant limitations in her activities of daily living but I am just unable to be specific about them.
“The results of the test/retest of the Beck Inventory questionnaire and Life Impact Assessment questionnaire raise the possibility of nomgenie disorder (maintenance or aggravation of signs and symptoms of an illness or injury in expectation of secondary gain through litigation).”

On December 28, 1999, Dr. Ronald Moon performed an IME on the worker at the request of the Trust Fund. Dr. Moon had medical records from Dr. Pinchback, Dr. Rivard, and Dr. Kirkland available to review. On that same day, Dr. Moon issued an “analysis of findings” in which he stated, in pertinent part:

“After comprehensive evaluation and review of available medical records, it is clear that [the worker] is at Maximum Medical Improvement status. In calculating an impairment rating, I must concur with Dr. Rivard that the Range of Motion Model used by Dr. Pinchback should not be used and, therefore, the calculation of 51% is grossly overestimating and misrepresenting [the worker’s] impairment.[] Dr. Pinchback’s prior office notes invalidate his own calculations. The [American Medical Association’s] Guides, 4th Edition, clearly state that the Range of Motion Model should not be used in cases where there is evidence of inconsistency and submax-imal effort and that impairment should be based on objective rather than subjective parameters. As such, in [the worker’s] case, using the Injury Model as outlined on Page 3/108 (previous spine injury without loss of segmental integrity or radiculopathy), her impairment would be between 5%-20% as noted on Page-3/102.
“After comparing to the Range of Motion Model, Table 75, Page 3/113, Section IV.E.l, the total body impairment rating as determined based on multiple level operations, with residual, medically documented pain and rigidity with or without muscle spasm (12%), adding 1 level (1%) and then 2% for the second operation and 0% for the invalid Range of Motion measurements is 15%. (This calculation is consistent with Dr. Pinch-back until he added the Range of Motion calculation, which invalidated his entire calculation.)
“Therefore, [the worker’s] total body impairment rating based on objective measures as outlined by the AMA’s Guides to the Evaluation of Permanent Impairment fth Edition is between 15%-20%. To be generous and consistent, I will agree with Dr. Rivard and affirm the 20% total body permanent partial impairment rating.
“As far as functional status and return to work status, it is my professional opinion as a physical medicine and rehabilitation specialist and Fellow of the American Academy of Disability Evaluating Physicians that [the worker] is most certainly capable of performing her duties as a laboratory technician.”

(Emphasis original.)

On May 12, 2000, Dr. J.C. Upshaw Downs, director of and state medical examiner for the Alabama Department of Forensic Sciences, wrote a letter to the worker informing her of his opinion that she could not perform the essential functions of her position as a lab technician “with or without reasonable accommodation.” On May 19, 2000, Dr. Downs wrote a letter to the worker informing her that he was terminating her employment with the Alabama Department of Forensic Sciences.

On July 27, 2000, Renee Smith, a vocational case manager with Corvel Corporation, which, from the record, appears to be the Trust Fund’s insurance carrier, issued findings from a vocational evaluation of the worker. In performing her evaluation, Smith reviewed: (1) her initial interview with the worker; (2) correspondence from the Department of Forensic Sciences; (3) Dr. Pinchback’s medical records; and (4) the worker’s report of the injury. In her evaluation, Smith summarized her findings as follows:

“At the time of her injury, [the worker] had worked in jobs that could be considered light to medium depending on the specific task involved. Following this injury, she was restricted to sedentary employment. Fortunately, [the worker] has a college degree and some experience with general office equipment and with a computer. This background could be helpful in locating employment within the sedentary work capacity.
“Taking into account all of the available information, it is determined that [the worker] has sustained a vocational loss of 63% as a result of her work related injury.”

On August 28, 2000, the Trust Fund sent a letter to the worker stating that, based upon (1) her reaching maximum medical improvement, and (2) Smith’s 63% vocational-disability rating, the worker was entitled to permanent partial compensation in the amount of $33,440. The Trust Fund also offered the worker job-placement services. On September 11, 2000, the Trust Fund sent the worker a letter acknowledging that it had received a letter from her requesting a hearing before the Trust Fund’s Review Board (hereinafter referred to as “the Review Board”). The Trust Fund’s letter stated that the worker contested the determination of her vocational-disability rating and that she claimed to be “totally and permanently disabled from gainful employment.”

On October 5, 2000, Rehab Associates performed a second FCE on the worker at the request of Dr. Kemp. On that same day, Rehab Associates sent a letter to Dr. Kemp stating, in pertinent part, that the “[evaluation results are not felt to reflect maximal functional abilities based on the many discrepancies noted. True maximal ability can only be left to conjecture at this point.” On October 25, 2000, Jane Logan, a vocational consultant, issued a “hypothetical vocational disability rating” based on a review of records, including: (1) information regarding Dr. Pinchback’s treatment of the worker and his findings regarding her physical abilities; (2) the results of the first FCE performed by Rehab Associates; (3) the IME performed by Dr. Rivard and his findings; (4) the psychological evaluation performed by Dr. Kirkland and his findings; and (5) the IME performed by Dr. Moon and his findings. Considering Dr. Pinchback’s findings, along with other factors such as the worker’s age, education, location, wage loss, and loss of access to jobs in the market, Logan determined that the worker’s vocational-disability rating was between 72% and 76%. Considering Dr. Moon’s findings, together with the above-mentioned factors, Logan determined that the worker’s vocational-disability rating was between 61% and 65%.

On November 1, 2000, Renee Smith performed a second vocational evaluation on the worker. In addition to the materials she reviewed during her first evaluation, Smith also reviewed (1) the deposition of Dr. Moon; (2) Dr. Kirkland’s medical records; (3) Dr. Kemp’s medical records; and (4) Rehab Associates’ medical records. Smith determined that the worker’s vocational-disability rating was 52%. Smith stated that considering only Dr. Pinch-back’s opinion, the rating would be 63%; considering only Dr. Moon’s opinion, it would be 43%. She explained that she arrived at her 52% rating by taking the opinions of both doctors into account.

On November 7, 2000, Nancy Crumpton performed a vocational evaluation of the worker at the request of the worker’s counsel. In performing her evaluation, Crumpton reviewed (1) Dr. Pinchback’s medical records; (2) Rehab Associates’ medical records; (3) Dr. Kemp’s medical records; and (4) Dr. Rivard’s medical records. In her evaluation, Crumpton determined:

“Taking into consideration [the restrictions assigned by Dr. Pinchback], [the worker’s] continued medical treatment [by Dr. Kemp], and her pain level as well as the effects of medications she is taking[, the worker] would not be able to meet competitive work demands. As a result[,] she would be totally vocationally disabled.”

On November 9, 2000, the Review Board conducted a hearing to consider the disputed vocational rating. During the hearing, the Review Board heard testimony from Renee Smith; Sandra Landers, a claims examiner for the Trust Fund; and the worker. The record of that hearing also contains all of the medical records previously discussed, as well as the transcribed deposition testimony of Dr. Moon. On November 28, 2000, the Review Board entered a decision that stated, in pertinent part:

“SUMMARY
“A vocational expert, Renee Smith, conducted a vocational test and an interview with [the worker], reviewed the medical records of Drs. Pinchback, Moon, Kirkland and Kemp, and reviewed the [FCE]. Ms. Smith concluded [the worker] was either 52% or 63% vocationally disabled, depending on whether [the worker] was classified as a sedentary or light duty employee. [The Trust Fund] accepted the 63% determination and paid benefits accordingly.
“[The worker] is a 46 year old woman with a college degree in biology and chemistry, along with skills and experience in using computers and office equipment. Ms. Smith testified that, based on her job market survey and a review of the newspaper’s classifieds, there were job opportunities available to [the worker] within her physical restrictions.
“An IME found ‘consistent documentation of inconsistencies and submaximal effort throughout formal testing (leading) to objective assessment of strong evidence of symptom magnification.’ Formal psychological testing revealed ‘characteristics of significant somatization, depression, hypochondriasis, anger, hostility, and exaggeration of symptoms.’
“CONCLUSION
“The burden of the Review Board is to determine whether there was a reasonable basis for the original decision made in this claim and, if so, whether there is now a compelling reason to change that decision.
“Permanent and total disability, as defined in the [Trust Fund’s] rules, includes a total incapacity from working at and being retrained for gainful employment. [The worker] has been found to have suffered an on-the-job injury and to have, as a result, a significant vocational disability. However, based upon the preponderance of the evidence, it appears to the Review Board that [the worker] is not totally and permanently vocationally disabled as that term is defined in the [Trust Fund’s] rules. The [Trust Fund’s] determination of a 63% vocational disability is upheld.”

On December 22, 2000, the worker petitioned the trial court for a review of the Review Board’s findings, pursuant to § 41-22-20, Ala.Code 1975. On August 27, 2001, the trial court set this case for a bench trial on December 19, 2001. On December 12, 2001, both the Trust Fund and the worker filed briefs with the trial court. On January 18, 2002, the trial court entered an order; that order stated:

“This cause is before the court on a petition for review by the [worker]. [The worker] has asked the court to review the finding of the Review Board that she has sustained a 63% vocational impairment as a result of a job injury she sustained on February 6, 1996. [The worker] contends that she is 100%
vocationally disabled. Liability is not an issue — only the extent of her disability.
“This court only has the authority to reverse or modify a decision of an administrative agency if this court finds that the decision of the agency is ‘clearly erroneous’ in review of the reliable, probative and substantial evidence on the whole record, or is ‘characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’ Section 41-22-20, Code of Alabama 1975.
“The Trust Fund contends that the decision of the Review Board is supported by the testimony of Dr. Ronald Moon and by its vocational expert, Renee Smith. Dr. Moon was hired to perform an [IME], which he did on December 28, 1999. In [subsequently] arriving at the conclusion that [the worker] could return to her job as a laboratory technician, he rejected the opinion of Dr. Up-shaw Downs, who is the Trust Fund Medical Examiner and Director of the forensic laboratory for which [the worker] worked, which was as follows: T have reviewed the essential functions of the laboratory technician job and am of the opinion that you probably cannot perform these essential functions with or without reasonable accommodations.’ Dr. Moon also rejected the results of the SWEAT test administered by Dr. Warner Pinchback, stating, in essence, that the SWEAT test was no longer the preferred method of testing one’s physical capabilities in Birmingham. In so doing, he rejected the five (5) pound weight restriction assigned by Dr. Pinchback. It is worth noting that Dr. Moon rejected Dr. Pinchback’s findings despite his admission that he didn’t have most of Dr. Pinchback’s records, and the fact that he had not conferred with Dr. Pinchback about [the worker].1
“Dr. Moon saw [the worker] on one occasion, which was ten (10) months pri- or to the hearing date.
“The Trust Fund’s vocational expert assigned [the worker] a 63% vocational impairment, and in doing so, she accepted Dr. Moon’s findings, rather than Dr. Pinchback’s findings. She testified that she was not aware that Dr. Downs had determined that [the worker] was not able to return to work as a laboratory technician.
“Dr. Warner Pinchback has been [the worker’s] primary treating physician, and he had been treating her for almost five years at the time of the hearing before the Review Board. Dr. Pinch-back performed two surgeries on her, viz. a two-level lumbar arthrodesis and a fusion with threaded fusion cages. He administered a SWEAT test, which indicated that [the worker] should never bend, kneel, crouch, shoulder reach, overhead reach, or lift or carry anything greater than ten pounds, which Dr. Pinchback himself modified to five pounds. He assigned a 51% physical impairment rating.
“The probative medical evidence indicates that [the worker] has been left with chronic back pain as a result of her job injury and surgeries incident thereto. At the time of the Review Board hearing, she was under the care of Dr. Roger Kemp, and under consideration was an implant of a percutaneous dorsal column stimulator in her back. According to Dr. Kemp, she has a failed back syndrome and bilateral lumbar radiculi-tis.
“The reliable, probative and substantial evidence is that [the worker] is totally and permanently disabled from working. This opinion was also reached by the plaintiffs vocational expert, Dr. Nancy Crumpton, who opined that [the worker] would not be able to meet competitive work demands, and as a result would be totally vocationally disabled.
“This court does not find that the Review Board’s decision is supported by substantial evidence. Dr. Pinchback, as the treating physician, was in a far better position to determine [the worker’s] physical capabilities, but his opinions and findings were capriciously rejected or ignored by both Dr. Moon and the Trust Fund’s vocational expert. On the other hand, [the worker’s] vocational expert correctly relied on Dr. Pinchback’s findings in assessing [the worker’s] vocational impairment at total and permanent.
“This court specifically finds that the decision of the Review Board is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and that the Review Board abused its discretion in not so finding.
“WHEREFORE, it is hereby ORDERED, DECREED and ADJUDGED that the decision of the Review Board is hereby set aside, reversed and/or modified, and that the Review Board shall modify its decision to the effect that [the worker] is totally and permanently disabled from working under the guidelines of the ... Employees Injury Compensation Trust Fund.
" 1Dr. Moon also testified that he had not spoken to Dr. Downs concerning his conclusion that [the worker] could not do the work of a laboratory technician, with or without accommodations. ’'

(Emphasis original.)

On February 15, 2002, the Trust Fund filed a motion to alter, amend, or vacate the trial court’s judgment. On April 2, 2002, the worker filed a response to the Trust Fund’s postjudgment motion. On April 12, 2002, the trial court denied the Trust Fund’s postjudgment motion. On May 24, 2002, the Trust Fund filed a notice of appeal to this court.

On appeal, the Trust Fund argues that the trial court erred by substituting its judgment for that of the Review Board and by ordering the Review Board to modify its decision to state that the worker was totally and permanently disabled. This court has stated:

“This court reviews a trial court’s judgment regarding the decision of an administrative agency 'without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than’ this court. State Health Planning & Res. Dev. Admin, v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App. 1985). Under the Alabama Administrative Procedure Act (‘AAPA’), § 41-22-1 et seq., Ala.Code 1975, which governs judicial review of agency decisions,
“ ‘[ejxcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“ ‘(2) In excess of the statutory authority of the agency;
“ ‘(3) In violation of any pertinent agency rule;
“ ‘(4) Made upon unlawful procedure;
“ ‘(5) Affected by other error of law;
“ ‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’
“ § 41-22-20(k), Ala.Code 1975.... In reviewing the decision of a state administrative agency, ‘[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993).... Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst. Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). ‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App. 1989). Further, ‘an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’ Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994).”

Colonial Mgmt. Group, L.P. v. State Health Planning & Dev. Agency, 853 So.2d 972, 974-75 (Ala.Civ.App.2002) (emphasis omitted).

The trial court found that the Review Board’s determination was due to be modified pursuant to § 41-22-20(k)(6) & (7), Ala. Code 1975, because, it determined, the Review Board’s action was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record” and was “[Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.” We disagree. Our review of the record confirms the Trust Fund’s assertion on appeal that it and the Review Board were presented with conflicting evidence concerning the extent of the worker’s physical impairment (the differing opinions of Dr. Pinchback, Dr. Ri-vard, and Dr. Moon); the extent of her vocational disability (the different ratings provided by Smith, Logan, and Crumpton); the possibility that the worker magnified her symptoms (Dr. Kirkland’s psychological evaluation, Dr. Rivard’s IME findings, and Dr. Kemp’s progress note); and her submaximal effort in testing (Rehab Associates’ FCE results).

Substantial evidence has been defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). There was substantial evidence supporting the Trust Fund’s 63% vocational-disability rating. That rating was determined by Smith before she considered the opinion of Dr. Moon; she considered only the opinion of Dr. Pinchback in her first vocational evaluation, contrary to the trial court’s finding that “she accepted Dr. Moon’s findings, rather than Dr. Pinchback’s findings.” Dr. Moon’s opinion was considered, in addition to Dr. Pinchback’s opinion, only in Smith’s second vocational evaluation in which she assigned the worker a 52% vocational-disability rating.

Additionally, we do not find the Review Board’s determination to be arbitrary or capricious, and, based upon the deference we are to apply in reviewing its determination, Colonial Management Group, supra, we conclude that the trial court erred in ordering the Review Board to modify its determination. Neither this court nor the trial court can substitute its judgment for that of the Review Board. Id. Accordingly, the trial court’s judgment is due to be reversed and the cause remanded for the trial court to enter an order affirming the Review Board’s determination of the worker’s vocational-disability rating.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ„ concur.

      . The worker had been referred to Dr. Kemp by Dr. Pinchback for pain-management assistance. Dr. Kemp was considering surgery to place a pain-relieving pump device in the worker.

      . However, during his deposition testimony on October 26, 2000, Dr. Moon stated that he did not have most of Dr. Pinchback's records when he performed the IME.

      . In his deposition, Dr. Moon stated that "overestimating and misrepresenting” may not have been the right terms but that "[t]he impairment rating is certainly high, and it’s too high for what [the worker] has.”

      . The quoted portion reflects what the worker's counsel represented the letter to state during Dr. Moon's deposition. The letter does not appear in the record before this court, although it was mentioned during the testimony of more than one witness. During Dr. Moon's deposition, the Trust Fund did initially object to questioning regarding the letter on the basis that a proper foundation had not been laid; however, it failed to object to further, more specific questioning by the worker’s counsel regarding the letter. Dr. Moon stated that his and Dr. Downs’s opinion regarding the worker's ability to return to work differed.

      . The May 19 letter refers to the May 12 letter, stating that the worker was being terminated because she had failed to contact Dr. Downs or to attend a meeting specified in the May 12 letter.

      . The worker’s letter requesting a hearing before the Review Board does not appear in the record.