N.C. Business Court Opinions, October 22, 2025 – November 4, 2025
By: Rachel Brinson
Rucker v. Kubler, 2025 NCBC 65 (N.C. Super. Ct. Oct. 22, 2025) (Conrad, J.)
Key Terms: motion to dismiss; Ponzi scheme; securities; investments; standing; subject matter jurisdiction; traceability
Plaintiffs Mike and Kristina Rucker initiated this action against their longtime financial advisor Kubler and several related companies, alleging that Kubler had defrauded them. Defendant Steelpool Inc. challenged Plaintiffs’ standing to bring claims for fraud, securities fraud, and other related claims against it. Steelpool argued that the financial harm alleged by the Plaintiffs was not fairly traceable to Steelpool’s conduct and therefore deprived them of standing. Without deciding if traceability is required to show standing in North Carolina state court, and limiting its review to the allegations of the complaint, the Court held that Plaintiffs allegations taken as true tend to show an injury suffered by Plaintiffs and traceable to Steelpool. The Court declined to consider Steelpool’s offers of evidence outside the pleadings because, while a trial court may generally consider matters outside the pleadings in connection with a jurisdictional challenge, this is not true when the jurisdictional challenge implicates an element of the asserted cause of action, which was the case here. Plaintiffs did not need to prove the elements of their claims at this stage of the case.
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Tanger Props. Ltd. P’ship v. ACE Am. Ins. Co., 2025 NCBC 66 (N.C. Super. Ct. Oct. 27, 2025) (Davis, J.)
Key Terms: motion to dismiss; Rule 12(b)(6); insurance coverage; COVID-19; choice of law; bad faith; unfair and deceptive trade practices; North State Deli, LLC v. Cincinnati Insurance Co.; N.C.G.S. § 58-63-15(11); lex loci contractus; N.C.G.S. § 58-3-1; due process; statute of limitations; Florida law
Plaintiff Tanger Properties filed claims with its all-risk insurance providers, Defendants’ ACE American Insurance and Liberty Mutual Fire Insurance, for business losses allegedly suffered during the COVID-19 pandemic. Defendants denied Plaintiff’s claims for coverage, contending that because Tanger had not established any direct physical loss or damage to property, the claims were excluded by the policies. However, after the N.C. Supreme Court held in North State Deli, LLC v. Cincinnati Insurance Co., 386 N.C. 733 (2024) that under an all-risk policy with no virus exclusion, “a reasonable person in the position of the insured would understand the [businesses’] policies to include coverage for business income lost when virus-related government orders deprived the policyholder [businesses] of their ability to physically use and physically operate property at their insured business premises[,]” Plaintiff filed the present action challenging Defendants’ denial of coverage. Defendants moved to dismiss all claims.
Breach of Contract and Declaratory Judgment and Choice of Law. Defendants argued that Georgia law applied under the doctrine of lex loci contractus, while Plaintiff argued that North Carolina law applied under a statutory exception to lex loci contractus for insurance-related disputes. Choice of law was of great importance here because North Carolina is only jurisdiction in the country to have interpreted similar insurance policy provisions as providing coverage for pandemic-related business losses under the type of insurance policies at issue here. Weighing the due process concerns and considering the close connection factors outlined in American Realty Advisors v. Lexington Insurance Co., 2019 NCBC LEXIS 59 (N.C. Super. Ct. Sep. 10, 2019), including that Plaintiff was headquartered in North Carolina and had outlet centers here, the Court concluded that North Carolina law applied and therefore, denied Defendants’ motion to dismiss these claims.
Unfair and Deceptive Trade Practices Act. Tanger argued that Defendants violated the North Carolina Unfair Claims Settlement Act set out in N.C.G.S. § 58-63-15(11) by engaging in unfair claims settlement practices and refusing to reconsider Tanger’s claims following the decision in North State Deli, but after Tanger initiated the present litigation. Without deciding whether post-litigation conduct of an insurer can give rise to a claim under § 58-63-15(11), the Court found that Defendants failed to establish that North Carolina law does not permit such a claim and therefore denied the motion to dismiss.
Breach of the Implied Covenant of Good Faith and Fair Dealing. Defendants argued that Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing is barred by the three-year statute of limitations. Construing the policy provisions in favor of Plaintiff, and considering a specific policy provision stating that the Florida statute of limitations applies to any claim for any loss under the policy, the Court determined that the applicable limitations period was four years for the bad faith claim. The Court next looked to determine the date of loss for Tanger’s bad faith claim, but found that discovery was necessary to establish that fact and accordingly denied the motion to dismiss this claim.
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Aspen Specialty Ins. Co. v. Nucor Corp., 2025 NCBC 67 (N.C. Super. Ct. Oct. 31, 2025) (Earp, J.)
Key Terms: cross motions for summary judgment; motion to strike; insurance coverage; plain language; unfair and deceptive trade practices; N.C.G.S. § 58-63-15(11); unfair claim settlement practices; equipment breakdown; iron ore; North State Deli, LLC v. Cincinnati Insurance Co., 386 N.C. 733 (2024)
Following an incident involving $14 million in losses caused by uncoated iron ore pellets damaging Defendants Nucor Corporation and Nucor Steel Louisiana, LLC’s reactor, Defendants filed insurance claims under separate property and equipment breakdown insurance policies. The Property Insurers (Plaintiffs) and Equipment Breakdown Insurers (Intervening Plaintiffs) denied Nucor’s claims asserting that the loss was not covered under either policy and filed suit seeking declaratory judgments confirming that their policies do not cover Nucor’s loss. Nucor counterclaimed for breach of contract, declaratory judgment, and unfair claim settlement practices. The Parties filed cross motions for summary judgment on various claims and counterclaims.
After careful review of the record, the Court determined that the Equipment Breakdown Insurers’ policy did not cover the loss because the series of events leading to the loss did not meet the definition of “Breakdown” under the policy. The Court focused on the policy definition’s inclusion of the phrase “direct physical loss” as well as the effect Nucor’s personnel and their decisions had on the event. The Court granted the Equipment Breakdown Insurers’ motion for summary judgment and entered judgment declaring that there was no coverage under the Equipment Breakdown Policy. Consequentially, the Court therefore denied Nucor’s motion for summary judgment on its claims for breach of contract and declaratory judgment and granted the Equipment Breakdown Insurers’ motion for summary judgment on Nucor’s UDTPA claim, which was based on its breach of contract claim.
Turning to the Property Insurers’ policy, the Court examined the Plaintiffs’ claim that coverage was excluded because Nucor did not suffer a “direct physical loss” within the meaning of the policy or otherwise fell under a policy exclusion. The Court found that physical loss included Nucor’s loss of use of the reactor while the solidified iron ore was removed as well as the repairs to the mortar joints of the reactor that were required. Finding the policy language unambiguous and interpreting the plain language as a matter of law, the Court determined that neither the faulty design nor inherent defect exclusions of the policy applied to the loss claimed by Nucor. The Court denied the Property Insurers’ motion and granted Nucor’s motion for summary judgment on its claims for breach of contract and declaratory judgment.
Lastly, the Court considered the Property Insurers’ motion to strike the declaration of Nucor’s technical manager, Gary Levanduski. The Property Insurers argued that Mr. Levanduski’s declaration contradicted his deposition testimony and contained legal conclusions. The Court found that Mr. Levanduski’s declaration did not contradict his deposition testimony but rather corresponded with it or addressed issues not raised during the deposition. The Court denied the motion to strike.
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Britcher v. Assurance Grp., LLC, 2025 NCBC 68 (N.C. Super. Ct. Nov. 4, 2025) (Davis, J.)
Key Terms: motion to dismiss; motion for more definite statement; Rule 12(b)(6); Rule 12(e); employment agreement; restrictive covenants; Rule 8(a); group pleading
Only considering Defendant The Assurance Group, LLC’s first argument to dismiss the Plaintiffs’ Complaint under Rule 12(b)(6), the Court analyzed whether the Plaintiffs’ operative complaint was too vague to put Defendant on notice of the claims being asserted against it. In its discretion the Court treated the motion to dismiss as a motion for a more definite statement under Rule 12(e) and found that the Plaintiffs’ allegations were not sufficient under Rule 8(a) because they failed to identify with particularity which of the twenty-one Plaintiffs were employees or independent contractors of Defendant, which operative contract such Plaintiffs were allegedly bound by, which claims each Plaintiff was pursuing, and which Plaintiffs left Defendant’s employ voluntarily or involuntarily. The Court ordered Plaintiffs to file a Second Amended Complaint with additional factual particularity.
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Sealy v. NWP Holdings, LLC, 2025 NCBC Order 81 (N.C. Super. Ct. Oct. 31, 2025) (Conrad, J.)
Key Terms: motion to cancel notice of lis pendens; purchase of membership interests; title to real property; N.C.G.S. § 1-116; constructive trust
Defendants NWP Holdings, LLC and Norwood Place Holdings I, LLC moved to cancel a notice of lis pendens filed by Plaintiffs Michael Sealy and Robert Davis. Plaintiffs’ Complaint sought to rescind a purchase agreement by NWP Holdings to buy Plaintiffs’ memberships interests in Norwood Place, and alleged fraud, failure of consideration, and constructive trust. The Court found that none of Plaintiffs’ claims relating to the dispute over their membership interests in the LLC directly seek to affect title to Norwood Place’s real property and therefore do not meet the statutory requirements for notice of lis pendens. The Court ordered that the notice of lis pendens be canceled.
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McCarron v. Howell, 2025 NCBC Order 82 (N.C. Super. Ct. Nov. 4, 2025) (Davis, J.)
Key Terms: motion to amend; fraudulent transfer; civil conspiracy; Rule 15; undue delay; undue prejudice; discovery
Plaintiff Shuan McCarron moved to amend his Complaint to add additional factual allegations to existing claims, to re-plead certain claims that were previously dismissed without prejudice by the Court here, and to add new claims against a new party, Defendant Harold Howell’s wife. Defendant opposed the motion to amend on the grounds of undue delay and undue prejudice. Despite more than fourteen months passing since the filing of the original complaint, the Court found that there was no undue delay because Plaintiff moved to amend within one month of receiving new information during discovery that formed the basis of the proposed amended allegations. The Court also found that the Defendant would not be materially prejudiced by the amendment even though additional fact discovery may be required. Lastly, the Court found that judicial economy would be served by permitting the amendment to include the claims against entities which were previously dismissed due to the overlapping nexus of facts. The Court granted the motion to amend.
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