
    Ex parte Raymond JAMAR and Joyce Hatchett Jamar. (Re Raymond JAMAR and Joyce Hatchett Jamar v. Kenneth Earl KIMBROUGH, et al.).
    1950982.
    Supreme Court of Alabama.
    Oct. 18, 1996.
    Rehearing Denied Aug. 29, 1997.
    See, J., concurred specially in overruling of rehearing application, with opinion.
    
      J. Robert Miller, Huntsville, for petitioners.
    John W. Evans and Patrick G. Nelson of Burr & Forman, Huntsville, for State Farm Mutual Automobile Insurance Company.
    Turner B. Williams and J. Clinton Pittman of Sadler, Sullivan, Sharp, Fishburne & Van Tassel, P.C., Birmingham, for Aetna Casualty & Surety Company.
   KENNEDY, Justice.

The Court of Civil Appeals, without opinion, affirmed a summary judgment in favor of the defendants State Farm Mutual Automobile Insurance Company (“State Farm”), Aetna Casualty and Surety Company (“Aet-na”), Kenneth Kimbrough, and Wilburn Baker. Jamar v. Kimbrough, 682 So.2d 516 (Ala.Civ.App.1996) (table). We granted cer-tiorari review in order to examine the record to determine whether, as the plaintiffs, Raymond Jamar and Joyce Hatchett Jamar, asserted in their certiorari petition, they had produced substantial evidence in support of their claims against Kimbrough and Baker.

It is undisputed that if the summary judgment was proper as to Kimbrough and Baker, then it was also proper as to the defendant insurers, State Farm and Aetna.

At issue, in pertinent part, is whether Kim-brough and Baker were “agents” under the “control and direction” of a third-party tort-feasor at the time of the incidents complained of. If so, then Kimbrough and Baker have been released from liability by the Jamars under the terms of a settlement agreement, and the summary judgment would be proper.

Both Kimbrough and Baker, in support of their summary judgment motions, produced affidavit testimony indicating that they were agents of and under the control and direction of the tortfeasor. Because the Jamars offered no evidence to refute this testimony, we hold that the summary judgment was proper as to Kimbrough and Baker.

A summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. See Ala.R.Civ.P. 56; Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the movant makes a prima facie showing of the absence of a genuine issue of material fact, then the burden shifts to the nonmovant to rebut this showing by “substantial evidence.” “Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The following facts are undisputed:

In April 1992, Trenton James, a majority owner of Valley Manufactured Homes, Inc. (“Valley”), hired Baker to assist him in transporting a “double-wide” manufactured home. James was to tow one-half of the home and Baker was to tow the other half. Also, Baker was to secure and pay “escorts” to ride ahead of James and Baker’s transport trucks. Kimbrough was retained by Baker to escort James’s truck.

While James was transporting his half of the home, he noticed a problem with his side mirror and radioed Kimbrough that he, James, would need to pull of the road. Kim-brough pulled off the road and then, apparently deciding that he had not chosen a good location for the pair to stop, pulled back onto the road. When he pulled back onto the road, James swerved to avoid hitting him, but collided with a vehicle driven by Raymond Jamar.

Raymond Jamar suffered bodily injury in the collision. He sued James and Valley, based on Ms injuries. His -wife, Joyce Jamar, also sued, claiming a loss of consortium. Ultimately they settled their claims against James and Valley, executing a full release in favor of those defendants. This release also purported to release from any liability related to the accident, “Kenneth Earl Kim-brough [and] Wilburn Baker” to the extent that they were acting “under the direction and control of Valley Manufactured housing and/or Trenton James” as their “agents, servants or employees” or “independent contractor[s],” at the time of the accident. •

Kimbrough and Baker were also made defendants, along with State Farm and Aetna. Kimbrough and Baker moved for a summary judgment on the basis that they “were agents of Trenton James” at the time of the accident. The Jamars concede that in support of their summary judgment motion Kim-brough and Baker presented affidavit testimony “which stated that they were under the direction and control of Trenton James as his agent.” In response, the Jamars assert that they presented the testimony of James, wMch they characterize as presenting “substantial evidence that Baker and Kimbrough were not employees of Trenton James and Valley and therefore were not released.” (Emphasis added.)

We agree that tMs testimony would support the contention that Kimbrough and Baker were not “employees” of James or Valley. However, neither this contention, nor James’s testimony, in any way refutes Kim-brough and Baker’s statements that they were acting as agents under the direction and control of James. As we have suggested, in the absence of any evidence they were not such agents, we must conclude that Kim-brough and Baker were released under the terms of the settlement agreement.

As stated, it is undisputed that if the summary judgment was proper as to Kimbrough and Baker, then it was proper also as to the insurers, State Farm and Aetna. We therefore affirm the judgment for all of these defendants.

AFFIRMED.

HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, COOK, and BUTTS, JJ., concur.

On Application for Rehearing

PER CURIAM.

APPLICATION OVERRULED. NO OPINION.

MADDOX, SHORES, KENNEDY, and COOK, JJ., concur.

SEE, J., concurs specially.

HOOPER, C.J., and ALMON and HOUSTON, JJ., dissent.

SEE, Justice

(concurring specially).

I concur to overrule the application for rehearing, but write specially to address whether a plaintiff can obtain a double recovery for a single breach of duty by suing a defendant first in that defendant’s capacity as agent and then in Ms capacity as an individual.

Whether a defendant is in an agency rela-tionsMp with some third-party principal does not as a general rule affect his duty to act reasonably toward a plaintiff. See 681 So.2d 654 (Houston, J., dissenting); Werner v. Henderson, 600 So.2d 1005, 1007 (Ala.1995). The question in this case, however, is whether a plaintiff who settles an action for breach of duty against a defendant who was sued in his capacity as an agent, may bring a second action based on the exact same breach of duty against the defendant, in the defendant’s capacity as an individual. Because liability arises from the breach of a duty to the plaintiff, not from the existence of an agency relationship with some third-party principal, to the extent the release in the first action settled the defendants’ liability for the tortious acts at issue, this second action is barred by the doctrine of res judicata. See Berwald v. Ratliff, 782 S.W.2d 709, 711 (Mo.Ct.App.1989)(holding that a prior action against a bank president in his official capacity barred a subsequent action, based on the same acts, against the bank president in his individual capacity); Parmater v. Amcord, Inc., 699 So.2d 1238 (Ala.1997) (affirming a summary judgment in favor of the defendant based on a settlement of a previous action arising out of the same set of facts and involving the same parties).

In this case, the release that settled the first action against the defendants in their capacities as agents expressly reserved the right to bring a second action against the defendants in their individual capacities. Such a contractual reservation of a right, however, cannot create a new tort cause of action. The defendants’ liability arises from a single breach of duty, not from their capacities as agents or individuals. The reservation did not create a separate breach of duty proximately causing a separate injury for which the plaintiffs are due additional compensation. Thus, the release executed to settle the first action, as alleged in the defendants’ motion for summary judgment, finally resolved the liability of the defendants in this action.

HOUSTON, Justice

(dissenting).

I mistakenly concurred originally. I did not realize my mistake until I obtained the record in this case on Tuesday, April 1,1997.

Raymond Jamar was involved in a motor vehicle accident while he was driving a truck owned by his employer, Shelby Contracting Company. Raymond Jamar, claiming damages for personal injuries, and his wife Joyce Hatchett Jamar, claiming damages for loss of consortium, filed two actions: one against Valley Manufactured Housing Company (“Valley”) and Trenton James and the other against Kenneth Earl Kimbrough, Wilburn Baker, State Farm Mutual Automobile Insurance Company (the Jamars’ uninsured motorist insurance carrier), and Aetna Casualty and Surety Company (Shelby Contracting Company’s uninsured motorist insurance carrier). The Jamars settled with Valley and James and executed a pro tanto release, which provided, in pertinent part, that the Jamars “do hereby release and forever discharge [Valley, James], any of the employees, agent[s], servants or individuals under the control and direction of [Valley] and/or [James], Acceptance Indemnity Insurance Company, the insurer of [Valley] and [James], and Acceptance Insurance Company and any of their employees, agent[s], servants or assigns WITH THE EXCEPTION OF KENNETH EARL KIMBROUGH, WILBURN BAKER, IN THEIR CAPACITY AS INDIVIDUALS.”

The Jamars’ complaint against Kimbrough and Baker alleges that Kimbrough “did negligently or wantonly cause a motor vehicle which he was driving to collide with the tow truck being driven by Trenton James which caused the tow truck to collide with the automobile [that] the Plaintiff, RAYMOND JAMAR, was operating.” That complaint further alleged:

“At the time of the accident, the Defendant, [Kimbrough], was being employed as the agent, servant or employee of the Defendant [Baker], The owner of the [truck] being driven by [Kimbrough] was [Baker] and ... the Defendant [Kimbrough] was acting in the employment of [Baker] at the time of the accident alleged herein.”

There are other counts; however, all of them are based upon the actions of Kim-brough as an agent of Baker, and none of them alleges that Baker and/or Kimbrough was an agent of Valley or James.

See 3 Am.Jur.2d Agency 813-15 § 309 (1986):

“From the standpoint of a person injured by the wrongful act of another, the relationship of principal and agent is immaterial, and the status of the wrongdoer in that connection of no consequence. This is for the reason that the tort liability of the agent is not based upon the contractual relationship existing between the principal and agent, but upon the common-law obligation that every person must so act or use that which he controls as not to injure another. In other words, if the agent is under a duty to third persons as well as to his principal, a breach of his duty to such third persons uñll render the agent liable to them. Thus, whether he is acting on his own behalf or for another, an agent who violates a duty which he owes to a third person is answerable to the injured party for the consequences. It is no excuse to an agent that his principal is also liable for a tort, inasmuch as the rights of a principal and agent inter se do not measure the rights of third persons against either of them for their torts, and the fact that an agent might have a right of exoneration or indemnity against his principal for a tort would not affect the rights of a third person against the agent. Nor is an agent who is guilty of tortious conduct relieved from liability merely because he acted at the request, or even at the command or direction, of the principal. Although the agent may avoid liability if he is exercising a privilege of the principal in committing the act, he does not have the immunities of his principal, even though acting at the principal’s direction.
“As is true with respect to employees generally, the liability of the agent is based on the duty which he himself owes to the third person, and in most jurisdictions now, this duty, rather than any distinction based upon whether the act is a misfeasance, malfeasance, or nonfeasance, is recognized as the test of liability. Pursuant to this test of liability, an employee or agent is liable to a third person for injuries resulting from the breach of any duty which the employee or agent owes directly to such third person, and is not liable to a third person for injuries resulting from a breach of duty which the employee or agent owes only or solely to his employer. Neither is an agent liable merely because his principal fails to discharge affirmative duties which the principal owes to the third person. Nor may an agent be held liable along with his principal for the damages incurred by third persons to whom the agent made representations in the principal’s behalf, where, although such representations were false, the agent concealed no material facts, acted in good faith and with reasonable care, and was merely conveying from the principal to the third persons the statements and representations of the principal.
“In accordance with these principles, an agent or other employee, has been held liable to a third person for his own negligence or his own positive wrongs, such as a trespass, an assault, the conversion of property, fraud or misrepresentation, defamation, abuse of process, or other form of tortious conduct.”

(Emphasis added.)

I forgot, overlooked, or otherwise missed this hornbook law when I concurred initially. I now know that I erred. I would grant the application for rehearing and then vote to reverse and remand.

HOOPER, C.J., concurs. 
      
      . State Farm and Aetna moved for summary judgments individually. Kimbrough and Baker filed a joint motion.
     
      
      . The Jamars incorrectly state that Kimbrough and Baker asserted as the basis of their summary judgment motion that they were acting as individuals at the time of the accident. This is in no way a fair reading of their motion for a summary judgment. See C. R. 74.
     
      
      . There is no indication that this testimony was objected to in the trial court.
     
      
      . The editors of American Jurisprudence 2d state:
      "[Ejvery person must so act or use that which he controls as not to injure another. In other words, if the agent is under a duty to third persons as well as to his principal, a breach of his duty to such third persons will render the agent liable to them. Thus, whether he is acting on his own behalf or for another, an agent who violates a duty which he owes to a third person is answerable to the injured party for the consequences .... In accordance with these principles, an agent or other employee, has been held liable to a third person for his own negligence. ...”
      3 Am. Jur. 2d Agency § 309 (1986).
     