author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte Thomas M. REINDEL, Tommy N. Kellogg, and Victoria J. Seeger. (In re Alabama Hospital Association et al. v. General Reinsurance Corporation et al. and Baptist Health System, Inc. v. General Reinsurance Corporation et al.)
    1051021.
    Supreme Court of Alabama.
    March 2, 2007.

      James H. Anderson of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for petitioners.
    J. Michael Rediker, J. Vernon Patrick, Peter J. Tepley, John M. Fraley, Charles M. Elmer, Michael C. Skotnicki, Page A. Poerschke, and Vincent J. Graffeo of Has-kell Slaughter Young & Rediker, LLC, Birmingham; and Thomas T. Gallion III and Jamie A. Johnston of Haskell Slaughter Young & Gallion, LLC, Montgomery, for respondent Alabama Hospital Association et al.
    W. Percy Badham III, Robert W. Tap-scott, Jr., and Will A. Smith of Maynard, Cooper & Gale, P.C., Birmingham; and Randall S. Haynes and Larry W. Morris of Morris, Haynes & Hornsby, Alexander City, for respondent Baptist Health System, Inc.
   WOODALL, Justice.

Thomas M. Reindel, Tommy N. Kellogg, and Victoria J. Seeger petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss the plaintiffs’ claims against them in consolidated actions pending in that court on the basis of lack of in personam, jurisdiction. We deny the petition.

The plaintiffs in the first-filed action, CV-2004-1172, are the Alabama Hospital Association and 33 Alabama hospitals, which, at all relevant times, were members of the Alabama Hospital Association Trust (“the trust”), organized pursuant to Ala. Code 1975, § 22-21-240 et seq. The Alabama Hospital Association and the 33 member hospitals are hereinafter referred to collectively as “AHAT.” The plaintiff in the second-filed action, CV-2004-1757, is Baptist Health System, Inc. (“BHS”), an Alabama corporation that operates hospitals, which was also a member of the trust. The two actions have been consolidated in the trial court.

The petitioners, defendants below, are vice presidents of General Reinsurance Corporation (“Gen Re”) and residents of Connecticut. Although Gen Re, a Delaware corporation with its principal place of business in Connecticut and licensed to do business in Alabama, is also a defendant, it is not a party to this mandamus proceeding.

I. Procedural Background

The allegations in the complaints center on the petitioners’ dealings with Reciprocal of America (“ROA”) — a Virginia-based reciprocal insurer, which provided insurance and reinsurance to hospitals, physicians, and lawyers throughout the South and Midwest until January 29, 2003, when ROA was placed in receivership by the Circuit Court of the City of Richmond, Virginia. The complaints accuse the petitioners of engaging in what is essentially a two-part conspiracy to defraud AHAT and BHS. They allege that the petitioners conspired with other defendants to induce AHAT and BHS to exchange their equity interests in the trust for “ROA securities,” and that, through a series of transactions with ROA between January 2001 and June 2002, AHAT and BHS lost approximately $50 million and $5.6 million, respectively, as a result of the financial collapse of ROA. The initial transaction was embodied in a document entitled “Acquisition of Assets and Assumption of Liabilities Agreement,” effective January 31, 2001. In June 2002, some of the hospitals were allegedly induced to make additional capital contributions to ROA (“the capital calls”). We refer to this aspect of the alleged enterprise as the “investment-fraud conspiracy.”

According to the plaintiffs, the petitioners also allegedly conspired to deceive state insurance regulators and a prominent insurance-company rating agency by essentially falsifying data and records regarding ROA’s financial status and its relationships with Gen Re and various other entities in order to encourage investments in ROA by the plaintiffs and others similarly situated. We refer to this part of the alleged enterprise as the “financial-reporting-fraud” conspiracy, a term coined by AHAT.

The petitioners challenged the exercise of the trial court’s jurisdiction over them with supporting affidavits. They each averred that they have never lived in Alabama and that they do not conduct business in this State. Subsequently, AHAT filed a “notice of service of discovery documents ... related to personal jurisdiction issues.” The trial court denied the petitioners’ motions to dismiss, holding that AHAT’s “complaint set forth allegations that establish sufficient contacts with this state to confer on this court personal jurisdiction over [the petitioners].” The petitioners have challenged that holding by petitioning for a writ of mandamus. AHAT and BHS have agreed to a stay of discovery, which the petitioners sought pending resolution of the jurisdictional issues by this Court. Consequently, the assertion of personal jurisdiction by AHAT and BHS rests entirely on the allegations in their complaints.

In that connection, we note that the claims against the petitioners in the consolidated complaints of AHAT and BHS are similar. However, AHAT’s “tenth amended and restated complaint” is more detailed than the last amended complaint of BHS. The parties have focused their arguments on the sufficiency of the jurisdictional allegations in AHAT’s complaint Indeed, in its briefs to this Court, BHS expressly incorporates the facts and arguments set forth in AHAT’s briefs “[i]n an effort not to be redundant.” Therefore, we will restrict our discussion to the jurisdictional sufficiency of the more comprehensive tenth amended and restated complaint of AHAT.

II. Discussion

Procedurally, jurisdiction over an out-of-state defendant is obtained pursuant to the “long-arm” rule, Ala. R. Civ. P. 4.2(b), as amended August 1, 2004. A person or entity is subject to jurisdiction under Rule 4.2(b) when that “person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States .... ” Rule 4.2(b) now embodies the “catchall” clause that was found in subparagraph (I) of Rule 4.2 before it was amended. “The structure of former 4.2 included a ‘laundry list’ of types of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama, as well as the ‘catchall’ clause now contained in new 4.2(b).” Committee Comments to Amendment to Rule 4.2 Effective August 1, 2004. “[S]ubparagraph (I) [was] but a restatement of the current definition of the federal constitutional standard.” Committee Comments on 1977 Complete Revision to Rule 4.2.

That standard “ ‘is the minimum-contacts standard elucidated in International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ],’ ” and its progeny. Bearden v. Byerly, 494 So.2d 59, 61 (Ala.1986) (quoting Shaffer v. Heitner, 433 U.S. 186, 207, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). Under that standard, “[a] physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.” Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it “ ‘should reasonably anticipate being haled into court [here].’ ” Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

The standard is met where “the defendant [has] ‘purposefully availed’ itself of conducting activity in the forum state, by directly targeting its [activities at] the state.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir.2003). ‘“This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of “ ‘the unilateral activity of another person or a third person.””” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525-26 (Ala.2003) (quoting Elliott v. Van Kleef, 830 So.2d 726, 731 (Ala.2002), quoting in turn Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Thus, the ultimate question under Rule 4.2(b) is the same as under former Rule 4.2(a)(2)(I), namely, whether the out-of-state defendants have “some minimum contacts with this state [that] ... it is fair and reasonable to require [them] to come to this state to defend an action.” (Emphasis added.)

According to the petitioners, dismissal “is required because [AHAT’s] complaint does not contain a single allegation describing any act committed by Reindel, Kellogg, or Seeger that occurred in Alabama, that was expressly aimed at Alabama, or that was directed [at] any identified or identifiable Alabama plaintiff.” Reply brief, at 11 (emphasis added). AHAT and BHS implicitly concede that the petitioners have not personally performed such overt acts. Their theory of jurisdiction, however, is that the petitioners were members of a “conspiracy in which they not only knew but directed their co-conspirators’ actions in Alabama in furtherance of the goals of the conspiracy, which caused [AHAT and BHS] to suffer injury.” AHAT’s brief, at 5. Moreover, according to AHAT, the trial court properly refused to dismiss the claims against the petitioners, because, AHAT argues, they failed to “rebut the key conspiracy allegations [of AHAT’s complaint] upon [which] the circuit court’s personal jurisdiction over them is based.” AHAT’s brief, at 5-6 (some emphasis added).

A. Key Conspiracy Allegations

AHAT’s complaint describes purported activities conducted by more than 18 individuals and entities from approximately 1991 to 2002 that are best characterized as a two-phased conspiracy. The phase constituting the bulk of the allegations of the complaint is the financial-reporting fraud.

1. Financial-reporting fraud

The alleged financial-reporting fraud principally consists of 13 or 14 interrelated but distinct “schemes,” which AHAT identifies in its brief by the selective grouping of paragraphs from its complaint. Only á few such schemes, however, are specifically alleged to be applicable to the petitioners.

For example, AHAT alleges that the petitioners conspired with codefendants Kenneth R. Patterson, Carolyn B. Hud-gins, and John William Crews, executive officers of ROA, to enter into a number of agreements involving Gen Re, ROA, and First Virginia Reinsurance, Ltd. (“FVR”). FVR, a Bermuda corporation, was allegedly created “to serve as a reinsurer of all of ROA’s retained share of risk on [its] physician and lawyer business.” Amended and Restated Complaint, at ¶ 116. AHAT alleges that these agreements included sham risk-transfer arrangements, “variously referred to as ‘aggregate stop loss/funding cover/ ... ‘noncontractual understandings,’ and ‘finite contracts,’ .... masquerading] as legitimate business arrangements while serving [the] improper purposes of manipulating the reported financial condition of ROA ... and un-derreporting [ROA’s] liabilities,” which “transactions were actually loans from Gen Re to FVR ..., guaranteed by ROA.” Amended and Restated Complaint, ¶ 156 (emphasis added).

Another such scheme allegedly involved a plan that allowed Gen Re to “pass ROA business,” that is, “FVR-reinsured risk,” through Gen Re “to FVR pursuant to re-trocession agreements between Gen Re and FVR [‘the retrocession agreements’].” FVR’s performance under the retrocession agreements was secured by assets held in Bermuda financial institutions under trust agreements to which FVR and Gen Re were allegedly parties (“the Bermuda trusts”). AHAT alleges that the petitioners, along with Patterson and Hudgins, “conspired to make a disguised transfer of $10 million from ROA to the Bermuda trusts,” which had become underfunded. ¶ 204. According to AHAT, the transfer was “fraudulently accounted for as a prepayment of reinsurance premiums to Gen Re, ... thereby inflating ROA’s surplus te policyholders by $10 million.” ¶ 205 (emphasis added).

Yet another scheme allegedly involved Patterson, Hudgins, and the petitioners in the formulation of an “unreported side agreement” in the year 2000 between Gen Re and ROA, which was designed “to limit or eliminate Gen Re’s reinsurance risk of loss, while maintaining the illusion that Gen Re continued to bear a substantial insurance risk of net loss under the Gen Re/ROA reinsurance treaties.” ¶ 183. The agreement allegedly contemplated “a cap in the amount of $140 million on Gen Re’s aggregate liability to ROA.” ¶ 186. According to AHAT, this agreement was not disclosed to insurance regulators in “ROA’s annual statement for the year 2000,” ¶ 199, and was intended to “arrest and improve ROA’s deteriorating financial condition while evading the enhanced regulatory monitoring[] that would be triggered if ROA’s RBC [risk-based capital] were to fall below 200% of ACL [authorized control level], or Company Action Level RBC.” ¶ 185 (emphasis added).

The essence of all the schemes forming the basis of the financial-reporting-fraud allegations against the petitioners is that the petitioners conspired with other defendants, particularly officers of ROA, to conceal and misrepresent the progressively precarious financial status of ROA. Among the alleged objects of this fraud were various state departments of insurance, including those of Tennessee, Virginia, and Alabama, which allegedly would have initiated regulatory measures had they been given accurate information.

Another alleged object of the fraud was the insurance-rating company, A.M. Best Company, Inc. (“Best”). According to AHAT, ROA was rated “A” by Best in January 2001, and certain defendants used this rating as an incentive for AHAT and BHS to invest in ROA. More specifically, AHAT alleges that “if ROA’s and its affiliates’ difficulties and problems and true condition had been timely disclosed to Best, among others, such ratings would not have been issued at the levels they were issued, and the Plaintiffs would not have entered into the transactions with the Defendants described in [the] complaint. ” ¶ 28 (emphasis added). In other words, the schemes constituting the financial-reporting fraud set the stage for the alleged investment-fraud conspiracy.

2. Investment fraud

The investment fraud allegedly occurred when certain defendants induced AHAT and BHS to invest in ROA, beginning in January 2001 and thereafter, through the exchange of AHAT’s and BHS’s equity in the trust for ROA securities and the subsequent capital calls. For example, AHAT’s complaint alleges:

“On September 14-17, 2000, at a meeting of the Trustees and Board[ ] of ... [the trust] ..., Patterson made [a] presentation to induce Plaintiffs to merge or combine with ROA, which included some or all of [the] aforesaid material misrepresentations regarding the financial condition of ... [ROA and] FVR.... Also attending this meeting were ... Hudgins ... and James 01-zacki,[] Executive Vice President of Gen Re.”

¶ 57. It also alleges:

“With regard to the ... three individual Gen Re defendants (Reindel, Seeger ... and Kellogg), they were intimately involved for a period of many years in the conspiratorial schemes which were intended to, and did, deceive and mislead the Alabama [Department of Insurance] and persons in Alabama doing business with ROA and its units ..., with respect to ROA’s ... financial condition and operations, and with their knowledge and consent their co-conspirators, such as Crews, Patterson, ... Hudgins, and others at ROA did business with and carried on contacts with the Plaintiffs and others in Alabama, as part of carrying out the joint conspiratorial schemes. Moreover, their actual and de facto agents, such as ... Ken Patterson of ROA, personally came to Alabama to make presentations to the Plaintiffs with respect to Gen Re, in the context of AHAT doing business with ROA.”

¶ 36(ii) (emphasis added). Finally, it alleges:

“Gen Re (1) regularly did large amounts of business in Alabama, including dealings with various Plaintiffs and reinsurance provided by Gen Re to AHAT, ... (2) made substantial amounts of premiums, profits and other benefits off of doing business with and for both Plaintiffs and ROA and its affiliated entities and [Patterson, Crews, and Hudgins]; ... [and 3] knew and foresaw that its widely publicized reinsurance backing of ROA would be relied upon by passive investors and equity subscriber interest holders like [AHAT].... Gen Re, acting through individual defendants Reindel, Kellogg and Seeger, was not only aware of but fully approved the AHAT acquisition and the resulting inclusion of Plaintiffs’ surplus in ROA’s financial system, and the resulting issuance of subscriber equity accounts to Plaintiffs, and, through such individual defendants, it was also aware of and fully approved the making of the 2002 capital call offers to the Plaintiffs.... ”

¶435 (emphasis added). Under AHAT’s theory of jurisdiction, “the actions and omissions of [individuals such as] Crews, [Patterson, and Hudgins] are imputed and attributable to [all] the other defendants,” such as the petitioners. ¶395 (emphasis added).

The petitioners contend that the exercise of jurisdiction on the basis of such a theory does not comport with the due-process requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. More specifically, they contend that AHAT’s theory unconstitutionally dispenses with the ‘“purposeful availment requirement[, which] assures that a defendant will not be haled into a jurisdiction as a result of “ ‘the unilateral activity of another person or a third person.’ ” ’ ” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d at 525-26 (quoting Elliott, 830 So.2d at 731, quoting in turn Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174). For that proposition, they cite cases from other jurisdictions refusing to recognize conspiracy-based jurisdiction. See, e.g., Karsten Mfg. Corp. v. United States Golf Ass’n, 728 F.Supp. 1429, 1434 (D.Ariz.1990); Mansour v. Superior Court, 38 Cal.App.4th 1750, 46 Cal.Rptr.2d 191 (1995).

AHAT and BHS rely on general principles of conspiracy liability; on cases from other jurisdictions, see, e.g., United Phosphorus, Ltd., v. Angus Chem. Co., 43 F.Supp.2d 904 (N.D.Ill.1999); Kentucky Speedway, LLC v. National Ass’n of Stock Car Auto Racing, Inc., 410 F.Supp.2d 592 (E.D.Ky.2006); Chenault v. Walker, 36 S.W.3d 45 (Tenn.2001); and on recent cases in which this Court recognized, at least in theory, the concept of conspiracy jurisdiction. See Ex parte United Ins. Cos., 936 So.2d 1049 (Ala.2006); Ex parte Bufkin, 936 So.2d 1042 (Ala.2006); and Ex parte McInnis, 820 So.2d 795 (Ala.2001).

United Insurance involved claims by Patricia Jackson against her health insurer, MEGA Life and Health Insurance Company (“MEGA”), and various foreign entities, which, she alleged, had conspired with MEGA to mislead Jackson regarding, among other things, the “ ‘true nature of the relationship between the Defendants, [and] ... the full and true nature and manner in which premiums and premium increases would be determined and/or calculated for [Jackson].’ ” 936 So.2d at 1051. The alleged foreign conspirators sought a writ of mandamus directing the trial court to “vacate its order denying their motions to dismiss the complaint against them and to grant their motions to dismiss for lack of personal jurisdiction.” 936 So.2d at 1052. We denied the petition, holding that Jackson’s complaint pleaded the existence of a conspiracy with sufficient specificity to entitle her to engage in jurisdictional discovery. 936 So.2d at 1056.

The result in Bufkin was similar. That case arose out of an automobile accident in Tennessee involving George Roberts, and John Bufkin, a Mississippi resident, who, at the time of the accident, was operating a vehicle belonging to Alabama resident Byron Williamson. 936 So.2d at 1044. Roberts’s complaint against Bufkin and Williamson alleged that “ ‘[a]t the time of the accident complained of, [the foreign defendant] was the agent, servant or employee of [the Alabama defendant] and/or was involved, in a joint venture with [the Alabama defendant].' ” 936 So.2d at 1046 (emphasis added). Bufkin sought a writ of mandamus directing the trial court to vacate its order denying his motion to dismiss for lack of personal jurisdiction. We denied the petition, concluding that Roberts had ‘“at least alleg[ed] facts that would support a colorable claim of jurisdiction,’ ” 936 So.2d at 1047, and was, therefore, entitled to discovery on the jurisdictional issue. In neither Bufkin nor United Insurance were we compelled to define the contours of conspiracy jurisdiction. Neither are we compelled to do so in this case. This is so, because, as AHAT points out, although “the petitioners submitted affidavits in support of their motions, ... the affidavits did not rebut, or even address, the key factual allegations on which [AHAT’s] argument for jurisdiction is based.” AHAT’s brief, at 19 (emphasis added). AHAT and BHS argue, in essence, that they met their threshold showing that jurisdiction is proper and that the petitioners failed to make their prima facie showing that the exercise of jurisdiction would be improper. We agree.

B. Threshold Showings

The affidavit filed by Reindel stated, in toto:

“1. I have been employed by [Gen Re] in Stamford, Connectieut[,] since 1983.
“2. I have personal knowledge of the facts stated in this Affidavit and am competent to testify to the same.
“3. I live and work in Fairfield County, Connecticut. I have never resided, or maintained a place of employment, in Alabama.
“4. I do not conduct business in Alabama. In particular, I:
“• do not maintain, and have never had, an office in Alabama;
“• do not own or possess, and have never owned or possessed, any real property or hold any mortgages or ■ liens in Alabama;
“• do not have, and have never had, any bank accounts in Alabama;'
“• do not have, and have never had, any telephone listings in Alabama;
“• do not have, and have never had, any employees or authorized agents in Alabama;
“• have never been a litigant in the courts of Alabama or availed myself of the courts of Alabama;
“• have not incurred or paid taxes in Alabama; and,
“• have not derived any income from business in Alabama.
“5. In the last ten years, I have not visited Alabama for any reason.
“6. I had no dealings with the Plaintiffs of any kind relating to their decision to pursue the business combinations and capital calls referred to in the Complaint in the above-captioned action. In particular, I was in no way involved in negotiating or promoting the ‘Acquisition of Assets and Assumption of Liabilities Agreement’ between AHAT and ROA referred to in ¶ 3 of the Complaint. I was also in no way involved in negotiating, soliciting or promoting the voluntary capital contributions of June 2002 referred to in ¶ 4 of the Complaint.
“7. I have never contracted to supply or obtain services or goods to or from Alabama.
“8. Given my lack of contacts with the State of Alabama, I have never expected that I could properly be sued therein.”

Kellogg’s affidavit was identically worded, except to say that he had worked for Gen Re in Greenwich, Connecticut, “from 1968 to May 2001,” and had not visited Alabama in the last seven years. Seeger’s affidavit was also identically worded, except for paragraphs 1, 8, and 5, which stated:

“1. I am employed by General Star (‘GenStar’) in Stamford, Connecticut. I have been employed with GenStar since February 2002. From October 1986 through January 2002, I was employed by [Gen Re] in Stamford, Connecticut.
“3. I live and work in Stamford, Connecticut. I have never resided, or maintained a place of employment, in Alabama.
“5. I have traveled to Alabama only once. The trip did not involve meeting with, or communicating with, the Plaintiffs.”

None of these affidavits deny the existence of a conspiracy, or the affiant’s participation therein. The affidavits are addressed, instead, to more conventional bases of jurisdiction, such as those embodied in the “laundry-list” provisions of Rule 4.2 before its 2004 amendment. However, the fact that a jurisdictional basis is not found within the laundry list “does not prevent a threshold finding of jurisdiction under the conspiracy theory,” pursuant to Rule 4.2(b). McLaughlin v. Copeland, 435 F.Supp. 513, 532 (D.Md.1977).

The petitioners concede, as they must, that the defendant must “make[ ] a prima facie evidentiary showing that the court has no personal jurisdiction [before] ‘the plaintiff is ... required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof.’ ” Petition, at 12-13 (emphasis added). Our cases say as much. See Ex parte United Ins. Cos., 936 So.2d at 1053 (“ ‘ “[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof.... ”” ”); Bufkin, 936 So.2d at 1045 (“ ‘However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof....” ’ ”).

To be sure, the conspiracy aver-ments in the complaint must exceed “bald speculation” and mere conclusory assertions. Ex parte McInnis, 820 So.2d at 806-07. However, this burden is not heavy, especially “[w]hen determination of the jurisdictional facts is intertwined with and may be dispositive of questions of ultimate liability.” McLaughlin v. Copeland, 435 F.Supp. at 530. This is so, because “[t]o require a more substantial showing in a case alleging a civil conspiracy would be ... ‘harsh, if not impossible’ in view of the difficulties of pleading and proving a conspiracy.” Id. (quoting Mandelkorn v. Patrick, 359 F.Supp. 692, 696 (D.D.C.1973)).

Moreover, until “controverted by the defendant’s affidavits,” the plaintiffs jurisdictional allegations must be considered as true. Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002)(emphasis added). Thus, where the complaint alleges conspiracy-based jurisdiction with particularity, failure to deny by affidavit or deposition the existence of, or participation in, a conspiracy will result in a denial of a motion to dismiss for lack of jurisdiction. See McLaughlin, supra; Mandelkom, supra. AHAT’s complaint meets the specificity threshold.

As illustrated previously in this opinion, AHAT alleges facts purporting to show that the petitioners, in the financial-reporting-fraud phase, conspired with Patterson, Hudgins, Crews, and others to conceal and to misrepresent the progressively precarious financial condition of ROA by, among other things, (1) underreporting the liabilities of ROA, and (2) inflating the surplus of ROA, in order to avoid intervention by various state insurance departments, and, ultimately, to present ROA to AHAT and BHS in a posture conducive to investment through the investment-fraud conspiracy. Relative to the investment fraud, the complaint alleges that the petitioners — in the historical context of Gen Re’s relationships with, and reinsurance of, AHAT — knew and approved of the negotiations with AHAT for its investments in ROA, which were conducted by and through their alleged coconspirators, Patterson, Crews, and Hudgins. It further alleges that some of these negotiations occurred in Aabama.

Without doubt, the petitioners were required to controvert by affidavit or deposition these specific allegations. However, their affidavits did not do so. They reveal nothing material to the conspiracy theory on which jurisdiction purports to stand. Defendants contesting in personam jurisdiction cannot meet their prima facie evi-dentiary burdens with affidavits having nothing to do with the relevant issues. At this stage in the litigation, therefore, it is not unfair or unreasonable to require the petitioners “to answer here for their roles in the alleged course of events.” Mandelkorn v. Patrick, 359 F.Supp. at 696-97 (“Assuming as true the unchallenged allegations of conspiracy, ... [there is] no injustice in requiring ... the New York and Florida Defendants to submit to suit [in the District of Columbia].”).

In that connection, it must be remembered that “[a] denial of a ... motion to dismiss for want of personal jurisdiction is interlocutory and preliminary only.” Ex parte McInnis, 820 So.2d at 798. “After such a denial, the continuation of personal jurisdiction over a defendant who appropriately persists in challenging it in [an] answer to the complaint and by motion for summary judgment or at trial depends on the introduction of substantial evidence to prove the ... jurisdictional allegations in the ... complaint.” Id.

III. Summary

In summary, the trial court did not err in denying the petitioners’ motions to dismiss the claims against them. This Court has previously recognized — albeit in the abstract — that personal jurisdiction may be grounded on a conspiracy theory of imputed conduct. We do not exclude the possibility that, under some circumstances, imputing conduct to an alleged coconspirator who has personally performed no overt act in Aabama might violate principles of due process as set forth in International Shoe and its progeny. However, in light of the procedural posture of this case, it is unnecessary to go beyond AHAT’s, and hence BHS’s, threshold showing of jurisdiction, because the petitioners have not made a -prima facie evidentiary showing of the absence of jurisdiction. For these reasons, the petition is denied.

PETITION DENIED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the rationale in part and concurs in the result.

MURDOCK, Justice

(concurring in the rationale in part and concurring in the result).

The main opinion states that “the conspiracy averments in the complaint must exceed ‘bald speculation’ and mere conclu-sory assertions.” 963 So.2d at 623 (citing Ex parte McInnis, 820 So.2d 795, 806-07 (Ala.2001)). The opinion then states: “However, this burden is not heavy, especially ‘[w]hen determination of the jurisdictional facts is intertwined with and may be dispositive of questions of ultimate liability,’ ” 963 So.2d at 623 (quoting McLaughlin v. Copeland, 435 F.Supp. 513, 530 (D.Md.1977)). The opinion further states that the reason “this burden is not heavy” is “because ‘[t]o require a more substantial showing in a case alleging a civil conspiracy would be ... “harsh, if not impossible” in view of the difficulties of pleading and proving a conspiracy,’ ” id. (again quoting McLaughlin, 435 F.Supp. at 530, in turn, quoting Mandelkorn v. Patrick, 359 F.Supp. 692, 696 (D.D.C.1973)).

As I read McLaughlin and Mandelkom, the above-quoted passages from those cases address the evidentiary showing required of a plaintiff seeking to base in personam jurisdiction upon a defendant’s involvement in a conspiracy. That eviden-tiary showing is, as explained in the main opinion, something different from the plaintiff’s pleading requirement and, in fact, need not be made unless and until the defendant makes a sufficient evidentiary showing to rebut the plaintiffs conspiracy allegations. I therefore am concerned that the main opinion may be read as suggesting that, in a case where a plaintiff seeks to rely upon a conspiracy to establish a court’s in personam jurisdiction over a defendant, the plaintiffs pleading burden is not a relatively “heavy” one — insofar as pleading requirements go. Indeed, as the full passage from Ex parte McInnis, which is referenced by the main opinion, states: “ ‘ “Bald speculation” or a “conclusionary statement” that individuals are co-conspirators is insufficient to establish personal jurisdiction under a conspiracy theory.... Instead, the plaintiff must plead with particularity “the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.” ’ ” 820 So.2d at 806-07 (quoting Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C.Cir.1997) (citations omitted) ).

This Court, in Mclnnis, emphasized that a “ ““ “defendant’s conduct and connection with the forum state [must be] such that he should reasonably anticipate being haled into court there,” ”” ” 820 So.2d at 803 (emphasis omitted) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)), and that “ ‘a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state,’ 820 So.2d at 804 (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). Applying these principles, as well as the above-quoted principle that a complaint must include more than conclusory assertions, the Mclnnis Court held that the allegations of the complaint in that case relating to one of the named defendants, Borka, were insufficient to make out a case for in person-am jurisdiction over him:

“[W]hile the last cause of action in the plaintiffs amended complaint expressly alleges that Mclnnis, Borka, and Shin-gleton, as well as other defendants, conspired together in most aspects of their alleged tortious conduct, these pleadings do not allege that they conspired together in marketing the product within Alabama. ... Absent express and sufficient allegations of either agency ... or a conspiracy between or among Borka and Mclnnis, Shingleton, or both, specifically to develop Alabama as a market, we cannot impute to Borka for the purpose of supporting personal jurisdiction over him, either the intentions and purposes of Mclnnis or Shingleton to develop Alabama as a market or their physical presences in Alabama.”

Ex parte McInnis, 820 So.2d at 806-07 (emphasis added).

It is based upon those allegations of the complaint that, as described in the main opinion, allege a conspiracy directed at Alabama and entities in Alabama, and upon the shortcomings of the petitioners’ evidentiary showings in response to those allegations, that I concur in the result reached by the main opinion. In so doing, I would echo what this Court, quoting Justice Houston’s special concurrence in Ex parte Sekeres, 646 So.2d 640, 642 (Ala.1994), said in McInnis: “ ‘It may well be that in personam jurisdiction of [the petitioners] exceeds the limits of due process, but I cannot say, based upon the record now before this Court, that the trial court clearly erred in denying the motion to dismiss or that [the petitioners have] a clear and indisputable right to be dismissed from this action’ ” at this stage in the proceedings. Ex parte McInnis, 820 So.2d at 806.

      . This action was commenced in April 2004.

      . According to AHAT's 223-page tenth amended and restated complaint, the statutory scheme in § 22-21-240 et seq. "authorizes hospitals to enter into a trust agreement ... to contribute funds to the trust for the purpose of self-insuring the member hospitals against professional and general public liability claims, based upon acts or omissions of such hospitals, including ... claims based upon malpractice.”

      . This action was commenced in July 2004.

      . The exchange essentially resulted in the merger of the trust with ROA.

      . " '[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in person-am jurisdiction.' ” Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 463 (Ala.2003)(quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003)). See also Ex parte McInnis, 820 So.2d 795 (Ala.2001); Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993).

      . In other words, AHAT and BHS allege that contacts with Alabama that are related to the alleged conspiracy give rise to specific, as opposed to general, personal jurisdiction. See Elliott v. Van Kleef 830 So.2d at 730-31 (discussing the difference between general personal jurisdiction and specific personal jurisdiction).

      . FVR has also been placed in receivership. The complaint describes FVR as an “offshore captive affiliate” of ROA.

      . See, e.g., the Alabama Risk-Based Capital for Insurers Act, Ala.Code 1975, § 27-2B-1 et seq., which mandates progressively cómpre-hensive managerial control by the Commissioner of Insurance, inversely proportional to the ratio of the insurer’s "total adjusted capital” to its risk-based capital, §§ 27-2B-5 to -7, as indicated in the insurer’s annual "adjusted RBC report.” § 27-2B-3.

      . "Best is one of five organizations designated as a Nationally Recognized Statistical Rating Organization by the United States Securities and Exchange Commission. A.M. Best issues financial strength ratings that measure an insurance company’s ability to pay claims.” Fleet Global Servs., Inc. v. Republic Western Ins. Co. (Ms. 6:04-CV-954-ORL18JGG, Nov. 7, 2006) note 2 (M.D.Fla.2006) (not published in F.Supp.2d).

      . Olzacki has not been made a defendant in this action.

      . "Alabama recognizes [civil conspiracy] as a substantive tort.” Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 522 (Ala.1983). "In essence, civil conspiracy is a combination of two or more persons to do: (a) something that is unlawful; [or] (b) something that is lawful by unlawful means.” Id. See also Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala.1988). “In a conspiracy, the acts of cocon-spirators are attributable to each other.” Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 476, 700 N.E.2d 859, 868 (1998).

      . Indeed, the petitioners do not contend that jurisdiction may not, under any circumstances, be based on conspiracy allegations and imputed conduct.


source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice

license: Public Domain

text:
    Harold Gene LANDS and Kathy Lands v. LULL INTERNATIONAL, INC., n/k/a Trak International, Inc.
    1051278.
    Supreme Court of Alabama.
    March 2, 2007.

      J. Douglas Fields, Jr., of Fields Law Firm, L.L.C., Birmingham, for appellants.
    H.L. Ferguson, Jr., and Steven R. Colc-lough of Ferguson, Frost & Dodson, L.L.P., Birmingham, for appellee.
   STUART, Justice.

Harold Gene Lands and Kathy Lands, the plaintiffs in an action against Lull International, Inc., n/k/a Trak International, Inc. (hereinafter referred to as “Lull”), and other defendants, appeal from a summary judgment entered in favor of Lull, arguing that the trial court erred in holding that their breach-of-warranty claim was barred by the statute of limitations in § 7-2-725, Ala.Code 1975. We affirm.

I.

On September 27, 1996, Rental Services Corporation (“RSC”) ordered from Lull, a manufacturer of heavy machinery, a “6K-37 Highlift,” a telescoping forklift. Lull delivered the 6K-37 forklift to RSC on October 25, 1996, and RSC added the 6K-37 forklift to its inventory of rental equipment and made it available for rent to contractors and other interested parties.

On approximately November 13, 2000, RSC rented the 6K-37 forklift to Michael Hall, a general contractor on a residential construction project in DeKalb County. On November 30, 2000, two workers on that construction project, one of whom was Harold Lands, decided to use the forklift element of the 6K-37 forklift as a platform on which to stand while installing shutters on the upper floor of the residence being constructed. While Harold Lands was on the platform approximately 20 feet above the ground, the other worker started the engine on the 6K-37 forklift, causing it to “jerk.” Lands was thrown to the ground; he broke his left leg and right heel in the fall.

On November 25, 2002, Harold Lands and his wife Kathy Lands sued RSC, Michael Hall, and fictitiously named parties, alleging negligence, negligent failure to train, and premises liability. On April 23, 2004, the Landses amended their complaint to assert a breach-of-warranty claim against Lull, alleging that the accident was caused by a defect in the design of the 6K-37 forklift. In its answer, Lull asserted that the Landses’ breach-of-warranty claim against it was barred by the statute of limitations; on December 19, 2005, Lull moved for a summary judgment on that basis, arguing that § 7-2-725, Ala.Code 1975, barred the Landses’ breach-of-warranty claim. Section 7-2-725 provides, in relevant part:

“(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
“(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.”

Lull accompanied its motion with evidence establishing that the 6K-37 forklift was delivered to RSC on October 25, 1996; therefore, Lull argued, under the clear language of § 7-2-725, the statute of limitations for any breach-of-warranty claim expired four years later on October 25, 2000 — approximately 1 month before Harold Lands was injured, 25 months before he and his wife filed this action, and 42 months before they amended their complaint to assert a claim against Lull.

The Landses opposed Lull’s motion, arguing that the four-year statute of limitations did not begin to run until August 22, 2002, when Lull issued a service bulletin identifying the design defect in the 6K-37 forklift that the Landses allege caused Harold Lands’s injuries. In support of their argument, the Landses relied on the exception in § 7-2-725(2), which states that “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered....” The Landses argued that the service bulletin extended the warranty on the 6K-37 forklift until January 31, 2003, inasmuch as, in that bulletin, Lull stated that it would fund the cost of repairs “to all units as defined in this letter whether in or out of warranty” so long as the repairs were completed by January 31, 2003. Accordingly, the Landses argue that their cause of action did not accrue and the statute of limitations did not begin to run until August 22, 2002 — the date the service bulletin was issued and the first date they claim Lull’s alleged breach of warranty could have been discovered. Therefore, they argue, their April 23, 2004, claim against Lull was timely.

On April 3, 2006, the trial court held a hearing on Lull’s summary-judgment motion, and, on April 11, 2006, the court granted the motion. The trial court thereafter certified its summary judgment for Lull as final pursuant to Rule 54(b), Ala. R. Civ. P. The Landses appeal.

II.

Lull’s motion for a summary judgment was based on the statute of limitations, an affirmative defense identified in Rule 8(c), Ala. R. Civ. P. In Board of School Commissioners of Mobile County v. Architects Group, Inc., 752 So.2d 489, 490-91 (Ala.1999), this Court stated:

“When a defendant bases its motion for a summary judgment on an affirmative defense, this Court applies the following standard of review:
“ ‘ “When there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law, summary judgment is proper. If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate. Rule 56(c), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).” ’
“Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444 (Ala.1999) (quoting Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)).”

The burden is therefore on Lull to demonstrate that there is no genuine issue of material fact as to any element of its statute-of-limitations defense.

III.

Lull accompanied its motion for summary judgment with an invoice and an engine-warranty registration form indicating that the 6K-37 forklift was delivered to RSC on October 25, 1996. Therefore, Lull argues, pursuant to the clear language of § 7-2-725, the statute of limitations for any breach-of-warranty claim expired four years later on October 25, 2000, before Harold Lands was even injured. This evidence is sufficient to make a prima facie showing that the Landses’ claim is time-barred; therefore, the burden then shifted to the Landses to produce substantial evidence indicating that their claim is excepted from the general rule of § 7-2-725 that a breach-of-warranty claim accrues when the warrantied item is delivered. They have failed to meet that burden.

The Landses argue that their claim is outside the general rule of § 7-2-725 based on the exception in § 7-2-725(2) for instances “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance.” This exception states that in those cases, “the cause of action accrues when the breach is or should have been discovered,” which date, the Landses argue, is August 22, 2002, the date Lull issued the relevant service bulletin. The Landses further argue that the issuance of “the service bulletin served to renew and extend Lull’s initial warranties until January 31, 2003.” The Landses have not argued that the service bulletin constitutes an independent retroactive warranty. Therefore, in order to demonstrate the existence of a genuine issue of material fact and rebut Lull’s prima facie showing, the Landses must produce substantial evidence indicating (1) that the initial warranty on the 6K-37 forklift “explicitly extends to future performance” of the forklift, and (2) that the service bulletin did in fact extend that warranty until January 31, 2003. However, because they have failed to establish the former, it is unnecessary to consider whether they have established the latter.

The Landses have not established that the initial warranty on the 6K-37 forklift “explicitly extends to future performance” of the forklift because there is no evidence in the record that would indicate what was covered by the initial warranty on the 6K-37 forklift. The Landses have admitted as much in their brief, stating:

“[N]o evidence of the Lull International 6K-37 [forklift] original warranty(ies) on the date of delivery was submitted to the court below, save for warranty information relating to the John Deere engine which was incorporated into the 6K-37 forklift.... Said document describes a ‘warranty on the reverse side’ of the page, but the reverse side of the page was not provided to plaintiffs, nor to the court below and is not a part of the record. Further, defendant Lull International, Inc., has not, to date, provided evidence of the original warranties which existed on the date of delivery of the equipment in question.”

It is apparent that the Landses believe it was Lull’s responsibility to place in the record evidence of the original warranty; however, they are mistaken. Lull made a prima facie showing that the Landses’ claim was time-barred without relying on the language of the original warranty; therefore, Lull had no obligation to place that warranty in the record.

After Lull made its prima facie showing, the burden shifted to the Landses to demonstrate that there was, in fact, a genuine issue of material fact as to the timeliness of their claim. They have attempted to establish such an issue of fact by invoking the exception in § 7-2-725(2) for instances “where a warranty explicitly extends to future performance of the good[ ]”; however, it was accordingly their responsibility to submit substantial evidence in support of the applicability of that exception. It is axiomatic that, in order to rely on the exception for instances “where a warranty explicitly extends to future performance of the good[ ],” there must be some evidence of that warranty. However, the Landses have submitted none. In Thompson v. Wilson, 474 So.2d 657, 660 (Ala.1985), this Court stated:

“We have already said that plaintiff, in neither affidavit, deposition, brief, nor reply brief, has produced a scintilla of evidence[] to show why [the affirmative defense of the Statute of Frauds] would not apply. We are of the opinion, and so hold, that even though plaintiff may produce a genuine issue of material fact [on other matters such as the terms or existence of a contract], if the other side makes out a prima facie case under a special plea of the affirmative defenses of the Statute of Frauds or the statute of limitations, it is incumbent upon the opposite party to come forward with at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate.”

Instead of submitting substantial evidence indicating the existence of a warranty extending to future performance, the Landses have concentrated their effort on showing that the service bulletin extended the coverage of the unproven warranty through the date of the accident. That fact is of little consequence, however, without a showing that there was an initial warranty extending to future performance — as opposed to merely a warranty to repair or replace — that could be extended and that would implicate the exception in § 7-2-725(2) relied upon by the Landses. Because there is no evidence in the record of any warranty explicitly guaranteeing the future performance of the 6K-37 forklift, the Landses have not established that they are entitled to the claimed exception in § 7-2-725(2). The summary judgment entered in favor of Lull, therefore, was correct.

IV.

In moving for a summary judgment, Lull made a prima facie showing that the Landses’ breach-of-warranty claim against it was filed outside the general four-year period of limitations governing breach-of-warranty actions. The Landses therefore bore the burden of producing substantial evidence indicating the existence of a genuine issue of material fact as to whether the four-year statutory limitations period had expired. They failed to carry that burden. Accordingly, Lull was entitled to a judgment as a matter of law, and the summary judgment entered by the trial court was proper.

AFFIRMED.

COBB, C.J., and SEE, LYONS, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I agree with the result reached by the main opinion. I write separately to note that that result is consistent with this Court’s teaching in Ex parte General Motors, 769 So.2d 903 (Ala.1999), as to the burdens of proof and production in regard to a motion for a summary judgment.

This Court explained in Ex parte General Motors that the party moving for a summary judgment always has the “ ‘burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.’ ” 769 So.2d at

909 (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). It is the manner in which that burden of production may be satisfied that can be dispositive in deciding a summary-judgment motion. Specifically, as the Ex parte General Motors Court explained:

“ ‘The manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial.’ If the movant has the burden of proof at trial, the movant must support his motion with credible evidence.... The movant’s proof must be such that he would be entitled to a [judgment as a matter of law] if this evidence was not controverted at trial.
“ ‘If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production either by submitting affirmative evidence that negates an essential element in the nonmovant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim....
“ ‘The nonmovant may defeat a motion for summary judgment that asserts that the nonmovant has no evidence to establish an essential element of his claim by directing the trial court’s attention to evidence of that essential element....
“ ‘If the nonmovant cannot produce sufficient evidence to prove each element of its claim, the movant is entitled to a summary judgment, for a trial would be useless.’ ”

769 So.2d at 909 (quoting with approval Justice Houston’s special concurrence in Berner, 543 So.2d at 691 (first and last emphasis added)). See also Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001) (“Principles governing burden of proof at trial and accrual of causes of action are therefore dispositive.”).

In the present case, Lull generally had the burden of proof as to the affirmative defense of the statute of limitations. Board of School Comm’rs of Mobile County v. Architects Group, Inc., 752 So.2d 489 (Ala.1999); Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002). It was the Landses, however, who had the burden of proving that the warranty at issue explicitly extended to the future performance of the 6K-37 forklift. Accordingly, Lull could satisfy its burden of production by simply asserting that the Landses had no evidence to this effect. Repeating an assertion implicit in its motion for a summary judgment, Lull asserted at the hearing on that motion:

“Any warranty of future performance in order to constitute an exception to the date of accrual being the delivery of the equipment must be made explicitly, it must be an expressed warranty of future performance. The plaintiffs have offered no evidence in this case that there was a[n] express warranty of future performance related to the [6K]-37 that’s involved in this case.”

The trial court correctly determined that this assertion was accurate and, therefore, that Lull was entitled to a summary judgment.

      . This decision was made in spite of a warning sticker in the cockpit of the 6K-37 forklift that stated, in capital letters: "This machine is not equipped to lift personnel. Never use this machine as a work platform.”

      . Kathy Lands asserted derivative claims of loss of consortium in conjunction with each of her husband’s claims.

      . A warranty extending to future performance of a product guarantees the performance of that product for a stated period of time, in contrast to a warranty to repair or replace, which implicitly acknowledges that a product might not perform, but provides for its repair or replacement if nonperformance in fact occurs. Tittle v. Steel City Oldsmobile GMC Track, Inc., 544 So.2d 883, 889 (Ala.1989).

      . It is unclear from their brief whether the Landses are in possession of the original warranty for the 6K-37 forklift. If they do not possess the warranty, they could have opposed Lull's summary-judgment motion pursuant to Rule 56(f), Ala. R. Civ. P., on the grounds that they needed more time to complete essential discovery so they could acquire the warranty and establish whether'they were entitled to the § 7-2-725(2) exception they claim. However, they did not avail themselves of Rule 56(f).

      . Thompson v. Wilson was decided prior to June 11, 1987, and thus was governed by the scintilla rule rather than the substantial evidence rule. The scintilla rule of evidence was abolished effective June 11, 1987. See § 12-21-12, Ala.Code 1975.


author: BRYAN, Judge. THOMPSON, Presiding Judge,

text:
    Benny W. DICKEY v. MIDSTREAM FUEL SERVICE, INC.
    2050645.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Ray M. Thompson, Mobile, for appellant.
    Brian P. McCarthy and Karen T. Luce of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellee.
   BRYAN, Judge.

The plaintiff Benny W. Dickey appeals a summary judgment in favor of the defendant Midstream Fuel Service, Inc. (“Midstream”). We affirm in part, reverse in part, and remand.

In reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmovant. See Glass v. Birmingham Southern R.R., 905 So.2d 789, 791 (Ala.2004). Viewed in that manner, the evidence in the case now before us established the following pertinent facts.

Dickey began working for Midstream in September 1997. From September 1997 until June 1998, he worked as a deckhand on the MV Pic. In June 1998, he obtained his tankerman’s license and began working as a tankerman on the MV Pic. In early September 1998, Midstream transferred him to the MV Brooke. Both the MV Pic and the MV Brooke are tugboats that push barges containing petroleum products.

On September 8, 1998, Midstream hired Dr. J. David Eaton, a physician in North-port, Alabama, to perform pulmonary-function tests on Dickey. Those tests revealed that Dickey had severe obstruction of his airways. Dr. Eaton also found that Dickey’s condition prevented him from wearing a protective respirator on a regular basis. Dr. Eaton informed Dickey and Midstream’s safety director of his findings and recommended that Dickey seek treatment from his personal physician in Mobile. Dickey admits that, in September 1998, he knew that he had severe obstructive lung disease.

Midstream’s safety director forwarded the results of Dr. Eaton’s tests on Dickey to Industrial Drug Testing, Inc. (“IDT”), for analysis. Midstream’s safety director asked IDT whether a medical condition prevented Dickey from wearing protective respiratory equipment, and, on September 22, 1998, IDT answered that question in the affirmative. Midstream’s safety department did not inform its operations department, which controlled Dickey’s job assignments for Midstream, of Dr. Eaton’s and IDT’s findings.

Dickey’s personal treating physician, Dr. Charles Yeager, examined Dickey in October 1998. Dr. Yeager diagnosed Dickey’s condition as chronic obstructive pulmonary disease (“COPD”) and informed Dickey of that diagnosis. Dr. Yeager referred Dickey to Dr. Maher N. Sahawneh, a pulmonol-ogist. Dr. Sahawneh examined Dickey in October 1998 and concurred with Dr. Yeager’s diagnosis that Dickey suffered from COPD. Dr. Sahawneh told Dickey that noxious fumes such as paint fumes or petroleum fumes had caused or contributed to his COPD. Dickey admits that, after talking to Dr. Sahawneh in October 1998, he knew that the fumes to which he was exposed while working for Midstream had caused or contributed to his COPD.

While working on the MV Brooke, Dickey began to experience breathing difficulties. In May 2001, Midstream had Dickey’s lungs tested by IDT. IDT reported to Midstream that Dickey’s condition prevented him from wearing protective respiratory equipment. Midstream’s doctor, William C. Hicks, examined Dickey in June, July, and August 2001. Dr. Hicks reported to Midstream that the results of Dickey’s pulmonary-function tests and EKG were abnormal and that Dickey was not qualified to wear a respirator. Midstream also had a stress test performed on Dickey in July 2001 that indicated an abnormality and septal ischemia.

On August 7, 2001, Midstream transferred Dickey from the MV Brooke to the MV Joanne Edwards, where he continued to work as a tankerman. The MV Joanne Edwards is a tugboat that pushes barges containing gasoline and diesel oil.

Midstream ordered Dickey to paint the engine room on the MV Joanne Edwards, which exposed him to paint and diesel fumes in an enclosed ventilated space. In addition, lack of maintenance by Midstream allowed exhaust fumes to leak into the engine room while Dickey was painting it.

Sometime after August 7, 2001, Midstream sent Dickey back to the MV Brooke for a couple of days. He then returned to the MV Joanne Edwards. Dickey worked as a tankerman on the MV Joanne Edwards until October 17, 2008, when he ceased working for Midstream.

On July 8, 2004, Dickey sued Midstream, seeking, pursuant to the Jones Act and general maritime law, to recover for the injuries to his lungs caused by his exposure to noxious fumes while working for Midstream. Answering Dickey’s complaint, Midstream asserted, among other things, the affirmative defense of the statute of limitations. Thereafter, Midstream moved the trial court for a summary judgment on the ground that Dickey’s claims were barred by the applicable three-year statute of limitations. Specifically, Midstream asserted that in 1998 Dickey discovered that his lungs had been injured by his exposure to noxious fumes while working for Midstream; that Dickey’s claims accrued for purposes of the three-year statute of limitations upon his discovery of his injuries and their cause in 1998; and that, therefore, the statute of limitations had expired before he sued Midstream on July 8, 2004.

In response to Midstream’s summary-judgment motion, Dickey conceded that he could not recover for injuries he had sustained more than three years before he filed his action against Midstream on July 8, 2004. However, he argued that, despite his discovery of his initial injury more than three years before he filed his action against Midstream, he was nonetheless entitled to recover for injuries he had suffered within the three years before he filed his action against Midstream under two separate cognizable claims, one based upon Midstream’s alleged negligent aggravation of his injuries during the three-year period before he filed his action against Midstream (“the negligent-aggravation claim”) and the other based upon Midstream’s alleged negligent assignment of him to unsuitable job duties during the three-year period before he sued Midstream that caused him injuries (“the negligent-assignment claim”). With respect to the negligent-assignment claim, Dickey argued that Midstream, with knowledge of Dickey’s COPD and his inability to wear protective respiratory equipment, (1) negligently assigned him to the MV Joanne Edwards as a tankerman on August 7, 2001; negligently ordered him to paint the engine room of the MV Joanne Edwards; and negligently reassigned him to the MV Brooke for a couple of days.

As an alternative to his argument that he was entitled to recover under the negligent-aggravation and negligent-assignment claims, Dickey also argued that he was entitled to recover for injuries he sustained during the three-year period before he filed his action against Midstream by virtue of the “modified continuing tort theory.” The United States Court of Appeals for the Eleventh Circuit explained the modified continuing tort theory in White v.

Mercury Marine, Division of Brunswick, Inc., 129 F.3d 1428, 1430 (11th Cir.1997):

“[T]he ‘modified’ continuing tort theory ... is best explained in terms of that which it modifies, the ‘pure’ continuing tort theory. Under the pure version of the continuing tort theory, a cause of action for any of the damages a plaintiff has suffered does not ‘accrue’ until the defendant’s tortious conduct ceases. See, e.g., Everhart v. Rich’s Inc., 229 Ga. 798, 194 S.E.2d 425, 428 (1972) (holding that the statute of limitations is tolled until the defendant’s continuing tortious activity is eliminated). Under the pure continuing tort theory, a plaintiff may recover for all the harm he has suffered, not just that suffered during the limitations period. See Taylor v. Meirick, 712 F.2d 1112, 1118 (7th Cir.1983). By contrast, the modified version of that theory allows recovery for only that part of the injury the plaintiff suffered during the limitations period. Here, that would be the damage to [the plaintiffs] hearing caused by the noise exposure occurring within three years before the lawsuit was filed.... ”

Following a hearing, the trial court entered a summary judgment in favor of Midstream. Dickey timely filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion, which the trial court denied, and Dickey then timely appealed to the supreme court. The supreme court subsequently transferred Dickey’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Dickey concedes, as he did in the trial court, that his claims for injuries he suffered more than three years before he filed suit on July 8, 2004, are barred by the applicable three-year statute of limitations. Therefore, we affirm the summary judgment in favor of Midstream insofar as Dickey’s claims seek recovery for injuries he suffered more than three years before he filed suit on July 8, 2004.

With respect to injuries he suffered during the three-year period before he filed suit, however, Dickey argues that the trial court erred in granting Midstream’s summary-judgment motion because, he says, he was entitled to recover for those injuries pursuant to (1) his negligent-aggravation claim; (2) his negligent-assignment claim; and (3) the modified continuing tort theory.

Federal law governs our decision in this appeal. In Glass v. Birmingham Southern R.R., 905 So.2d at 794, our supreme court stated:

“Although our decision is guided by federal common law as pronounced by the federal courts, we do not consider all federal decisions to constitute controlling authority. Rather, in determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority.”

(Footnote omitted.) Those principles govern our determination of federal law in this appeal.

In Chatham v. CSX Transportation, Inc., 613 So.2d 341, 345-46 (Ala.1993), the Alabama Supreme Court recognized the existence of separate, cognizable claims alleging negligent aggravation and negligent assignment under the Federal Employers’ Liability Act (“the FELA”), 45 U.S.C. § 51 et seq. Although the Alabama Supreme Court apparently has not had occasion to consider whether such claims exist under the Jones Act or general maritime law, it stated in Ex parte CSX Transportation, Inc., 735 So.2d 476, 480 n. 2 (Ala.1999), that “[t]he Jones Act, which provides a remedy for injured seamen, ‘adopts “the entire judicially developed doctrine of liability” under the Federal Employers’ Liability Act (FELA).’ ” (Quoting American Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994).) Hence, the Alabama Supreme Court’s recognition of the existence of separate, cognizable claims alleging negligent aggravation and negligent assignment under the FELA indicates that it would likewise recognize their existence under the Jones Act.

In Chatham, the Alabama Supreme Court described the separate, cognizable claims alleging negligent aggravation and negligent assignment under the FELA as follows:

“[Negligent-aggravation and negligent-assignment] claims represent separate FELA causes of action to which the continuous tort doctrine may apply; if it applies, the running of the limitations period is tolled as long as the employer’s negligent conduct continues. Kichline v. Consolidated Rail Corp., 630 F.Supp. 50, 55 (E.D.Pa.1985), affirmed in part, remanded in part, 800 F.2d 356 (3d Cir.1986); Fletcher [v. Union Pac. R.R., 621 F.2d 902], at 907-08 [(8th Cir.1980) ] (negligent assignment).
“... This tolling of the running of the limitations period serves only to protect a claimant’s right to file an FELA claim alleging aggravation or negligent assignment; it is not intended to allow a potential claimant knowingly to accumulate further injury and thereby increase his or her damages, because such a policy would be contrary to the goals of the FELA. See Lloyd v. Missouri Pac. R.R., 832 S.W.2d 310, 313 (Mo.App.1992).
“The vast majority of courts limits recovery to only those damages for injuries (or worsening of existing conditions) that have accrued within the [three-year
limitations period] before the filing of the action....
“Aggravation and negligent assignment are two distinct causes of action containing separate elements of proof; both require a showing of employer negligence, but a claim of negligent assignment requires additional proof that the employer was aware of the employee’s condition. Kichline, supra, 800 F.2d at 361.
“Chatham can claim damages for aggravation of his hearing loss if he can show a deterioration in his hearing caused by his work environment during the three years before he filed this action and can establish the railroad’s negligence in exposing him to injurious working conditions, even if CSX was unaware of his existing hearing impairment. See id. We note that Chatham’s awareness of potential additional work-related hearing loss during that period might not bar his claim for aggravation, but rather would go to the issue of contributory negligence. Id.
“... A claim of negligent assignment requires proof that the employer knew of its employee’s injury but nevertheless assigned that employee to unsuitable work, Kichline, supra, 800 F.2d at 361, or failed to provide the employee adequate protection from continuing harm. ‘Whether the assignment was negligent is a question of fact.’ Fletcher, supra, at 909 (citations omitted).
“ ‘[A] plaintiffs cause of action in any FELA case accrues when he is aware of his injury and its cause. If he then brings his injury to the defendant employer’s attention but it refuses to correct the employment conditions that caused the plaintiffs problem or a different problem is caused thereby, the plaintiff may acquire a separate FELA cause of action. As to that action, the statute of limitations may be tolled as long as the negligent or intentional conduct persists. The case law makes it quite clear, however, that there can be no continuous injury cause of action in the absence of the defendant’s knowledge that its conduct caused or contributed to plaintiffs injury. This analysis and conclusion serves two interests. For just as a defendant should not acquire a right to persist in harmful conduct, neither should a plaintiff acquire a right to remain in adverse conditions, unknown to the defendant, and increase his damages thereby.’
“Kichline, supra, 630 F.Supp. at 55.
“Once a plaintiff in a negligent assignment case proves that injury
“ ‘results from a negligent act and the injury continues by reason of continued [employer] negligence, a recovery may be had for damages caused by the continuing negligence although a cause of action based on the original negligent act is barred.’
“Fletcher, supra, at 907-08. The plaintiff must show that the assignment caused his present condition, and causation under the FELA is shown if ‘the railroad’s negligence played any part, however small, in the injury which is the subject of the suit.’ Id. at 909 (citations omitted). The injury may be due to ‘the cumulative effect of a series of incidents.’ Id. Finally, the plaintiff must prove that the repeated assignment was, in fact, negligent; negligence is shown if it is shown that the railroad ‘knew or should have known that its assignment exposed the employee to an unreasonable risk of harm. ’ Id. (citations omitted). Furthermore, ‘[t]he employee’s knowledge of his physical condition does not absolve the railroad of its duty to protect the employee from further injury.’ Id. (citations omitted).”

613 So.2d at 345-47 (footnote omitted; emphasis added).

Based on the holding of the Alabama Supreme Court in Chatham, we conclude that the Alabama Supreme Court would recognize separate, cognizable claims alleging negligent aggravation and negligent assignment under the Jones Act. A claim of negligent aggravation under the Jones Act requires proof that an employee continued to work for his employer until a date that is within the three-year period before the employee filed suit, that an existing injury or condition worsened because of his work environment during that three-year period, and that the employer was negligent in exposing the employee to the working conditions that caused the worsening injury or condition. The employee does not have to prove that the employer was aware of the employee’s existing injury or condition in order to prevail on a claim of negligent aggravation under the Jones Act. Evidence indicating that the employee was aware that exposure to the working conditions could potentially cause the worsening of his existing injury or condition during the three-year period before he filed suit “might not bar his claim for aggravation, but rather would go to the issue of contributory negligence.” Chatham, 613 So.2d at 346. Recovery under a claim of negligent aggravation under the Jones Act is limited to only those damages for the worsening of the employee’s injury that occurred during the three years before the employee filed suit.

“A claim of negligent assignment [under the Jones Act] requires proof that[, within the three-year period before the employee filed suit,] the employer knew of its employee’s injury but nevertheless assigned that employee to unsuitable work, Kichline, supra, 800 F.2d at 361, or failed to provide the employee adequate protection from continuing harm,” Chatham, 613 So.2d at 346, and that the employer’s negligence caused the employee’s injury to continue or worsen. Recovery under a claim of negligent assignment under the Jones Act is limited to only those damages attributable to an injury continuing or worsening during the three-year period before the employee filed suit. “ ‘[T]he employee’s knowledge of his physical condition does not absolve the [employer] of [liability under a claim of negligent assignment].’ ” Chatham, 613 So.2d at 347.

Accordingly, insofar as Dickey asserts claims alleging negligent aggravation and negligent assignment, the trial court erred in entering a summary judgment in favor of Midstream on the basis of the applicable three-year statute of limitations.

In response to Dickey’s argument that he had a separate, cognizable claim of negligent aggravation, Midstream argued to the trial court that, even if Dickey had such a claim, Midstream was nonetheless entitled to a summary judgment with respect to that claim because, Midstream said, Dickey’s evidence did not establish that Midstream knew that its conduct caused or contributed to Dickey’s injury. However, the supreme court held in Chat-ham that an employer could be liable for negligent aggravation even if the employer was not aware that its conduct was causing or contributing to the employee’s injury. Moreover, Dickey presented substantial evidence tending to prove that Midstream did know that its conduct was causing or contributing to Dickey’s COPD.

In response to Dickey’s argument that he had a separate, cognizable claim of negligent assignment, Midstream argued to the trial court that, even if Dickey had such a claim, Midstream was nonetheless entitled to a summary judgment with respect to that claim because, Midstream said, Dickey had not presented any evidence indicating that he personally had told Midstream that he suffered from COPD. As authority for this argument, Midstream cited to the trial court the Chatham court’s quotation from Kichline v. Consolidated Rail Corp., 630 F.Supp. 50, 55 (E.D.Pa.1985), in which the United States District Court for the Eastern District of Pennsylvania had stated that “[i]f [the employee] ... brings his injury to the employer’s attention but it refuses to correct the employment conditions that caused the [employee’s] problem or a different problem is caused thereby, the [employee] may acquire a separate FELA cause of action.” We do not read the Chatham court’s quoting the district court’s opinion in Kichline as being tantamount to the Chatham court’s holding that the employee must prove that he personally brought his injury to the employer’s attention in order to establish a claim of negligent assignment — -rather, we read the Chatham court’s statement that “[a] claim of negligent assignment requires proof that the employer knew of its employee’s injury but nevertheless assigned that employee to unsuitable work, Kichline, supra, 800 F.2d at 361, or failed to provide the employee adequate protection from continuing harm,” 613 So.2d at 346 (emphasis added), as indicating that proof that the employer knew of the employee’s injury, regardless of the source of the employer’s knowledge, is sufficient. In the case now before us, the evidence proved that Midstream was well aware of Dickey’s COPD before it (1) assigned him to the MV Joanne Edwards as a tankerman on August 7, 2001; (2) ordered him to paint the engine room of the MV Joanne Edwards; and (3) reassigned him to the MV Brooke for a couple of days.

Therefore, insofar as Dickey alleges claims of negligent aggravation and negligent assignment, we reverse the summary judgment in favor of Midstream and remand the case to the trial court for further proceedings consistent with this opinion.

The courts have rejected the modified continuing tort doctrine as a basis for recovery under the Jones Act and general maritime law. See White v. Mercury Marine, Division of Brunswick, Inc., supra. Therefore, insofar as Dickey asserts claims for recovery based upon the modified continuing tort doctrine, we affirm the summary judgment in favor of Midstream.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, with writing, which THOMAS, J., joins.

THOMPSON, Presiding Judge,

concurring in the result.

' I concur with the general holdings of the main opinion. I write specially to note my belief that the negligent-aggravation and negligent-assignment claims are not barred by the statutory limitations period because they accrued within three years of the date the plaintiff filed suit. The supreme court recognized in Chatham v. CSX Transportation, Inc., 613 So.2d 341 (1993), that negligent aggravation and negligent assignment are torts independent from the defendant’s tortious acts that originally injured the plaintiff. I believe that, as independent torts, those claims have independent dates of accrual defined by the Jones Act and general maritime law. Therefore, to the extent that the plaintiffs negligent-aggravation and negligent-assignment claims accrued within the statutory limitations period, I believe that the main opinion is correct in holding that they are not barred.

THOMAS, J., concurs.

      . The parties agree that the three-year general-maritime-law statute of limitations codified in 46 U.S.C.App. § 763a ("section 763a") applies to all of Dickey’s claims. Section 763 a states:
      "Unless otherwise specified by law, a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action accrued."

        . See White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435 (11th Cir.1997) ("we hold that a cause of action 'accrues’ for the purposes of 46 U.S.C.App. § 763a [the general maritime statute of limitations] when the plaintiff knew or should have known of his injury and its cause”).