What’s in a name? Enough confusion to sink a subrogation lawsuit an
d appeal brought by the insurer for a burned-up Hardee’s restaurant, the North Carolina Court of Appeals said Wednesday.
“…The trial court properly determined that Intrepid Agency lacked sta
nding to file the complaint in this matter,” a panel of the court wrote. “Therefore
, we affirm the court’s order granting Defendants’ motions to dismiss.”
In 2019, a fire heavily damaged a Hardee’s restaurant in Albemarle, North Car
olina. The insurance carrier for the restaurant owner was Intrepid Direct Insurance C
o., a Berkley Insurance subsidiary. Intrepid Direct Insurance Agency was th
e broker for the restaurant company, the court explained in the April 2 opinion.
Three years after the fire, after paying the claim, the insurer filed a subrogation suit against Amerex Corp. and Pye-Barker Fire & Safe
ty, contending that the restaurant’s fire suppression system was faulty and led to the large loss.
But it was the agency’s name that was on the lawsuit complaint. The attorneys for the insurer tried to amend the complaint in 2023, b
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ut the amended complaint was again filed under the agency’s name. And by then, the statute of limitations had run, precluding the filing
of a separate lawsuit under the correct name.
Three days later, the fire companies asked the trial court to dismiss, since the agency was not an injured party and lacked standi
ng. The trial court agreed and dismissed the suit. Intrepid appealed, but the appell
ate judges upheld the lower court in an opinion that sounds something like the book and film, “Catch 22.”
“Standing is measured at the time the pleadings are filed,” Appeals Court Judge Valerie Zachary wrote, citing a previous court de
cision. “In other words, a plaintiff must have standing at the time of filing to have standing at all. Subsequent events cannot confer standing retroactively.”
The court did not explain what Intrepid Insurance should have done
to correct what Intrepid lawyers considered a scrivener’s error.
In practice, the firms appear to be part of the same company. The insurance company’s website notes: “Intrepid Direct Insurance operates as Intrepid Direct Insurance Agency, LLC.”
One lawyer for Intrepid declined to comment and another could not be reached Wednesday and Thursday.
