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 Wolff's 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 *Page 1131 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.¹ Wolff moved to compel arbitration of the Whites' claims against it. The trial court denied Wolff's 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. 1995) (opinion on application for rehearing) (quoting In reAmerican 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.² The Whites also *Page 1132 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 (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 (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 instrumentalities 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).³ *Page 1133

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 thatSisters 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-BruceTerminix 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 (quotingMandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219,236 (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 '"incur[red] 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.⁴ 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, *Page 1134 and the Whites conduct business in Alabama and Florida. In CitizensBank, the Supreme Court of the United States found that the transaction at issue there fell within the scope of the FAA because "Alafabco 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.⁵ 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 (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.⁶ 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 Statesv. 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").⁷ Moreover, the Whites *Page 1135 operate a wrecker company, and in the aggregate the business of towing involves interstate commerce. See Gray v. Swanney-McDonald, Inc.,436 F.2d 652, 653 (9th Cir. 1971) (holding that the towing industry's cumulative effect on interstate commerce is substantial).⁸

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 instrumentalities 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 instrumentalities 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 instrumentalities 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 PestControl, Inc. v. Boykin, 807 So.2d 524, 526-27 (Ala. 2001); Ex parte *Page 1136 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.⁹ 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.¹⁰ See Jack IngramMotors, Inc. v. Ward, 768 So.2d 362 (Ala. 1999) (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, [Ms.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 Wolff's 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.