Raritan River Steel Co. v. Cherry, Bekaert & Holland

Judge Duncan

dissenting.

I disagree that there is a genuine issue of material fact here as to whether plaintiff is an intended beneficiary of defendant’s contract with IMC. It is undisputed that the contract between defendant and IMC does not express an intent to benefit creditors and does not mention plaintiff. Neither creditors generally nor plaintiff in particular were informed that the audit was being performed. IMC had a stated policy of limiting the distribution of such audits, and specifically refused to supply plaintiff a copy. Nor did defendant send copies of the audit to plaintiff.

In fact, it is undisputed that plaintiff did not even see a copy of the audit itself. Two of plaintiff’s officers saw only a Dun and Bradstreet synopsis. Further, plaintiff’s president, who made the actual decision to continue shipping steel to IMC, saw neither the audit nor the Dun and Bradstreet report. Our Supreme Court has held that a plaintiff must have relied on the audited financial state *12 ment itself in order to recover for negligent misrepresentation. Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200 , 367 S.E.2d 609 (1988). It is also undisputed that defendant had no knowledge that IMC intended to release the audit to Dun & Bradstreet.

In view of the undisputed evidence that defendant and IMC attempted to limit circulation of the audit on which plaintiff purports to have relied, and plaintiff’s own admission that the officer who made the critical decision did not rely on the audit itself or the Dun & Bradstreet report, I would not extend defendant’s potential liability on the basis of facts as attenuated as these.