dissenting.
The majority’s opinion dismisses Profile’s appeal as interlocutory and states, “Profile has failed to show a substantial interest which would be lost if this appeal is dismissed.” Defendants asserted multiple substantial rights that will be lost if the trial court’s order is not immediately reviewed. The trial court erred in denying Profile’s motion for summary judgment. I vote to hear Profile’s appeal, and to reverse the trial court’s denial of summary judgment. I respectfully dissent.
I. Interlocutory Order
An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Generally, the denial of a motion to dismiss is an interlocutory order from which there may be no immediate appeal. Nevertheless, [a]n interlocutory appeal is ordinarily permissible ... if (1) the trial court certified the order under Rule 54(b) of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review.
*159Since the appeal in the instant case was not certified by the trial court under 54(b), defendants must illustrate a substantial right exists which will be lost absent immediate appellate review.
McClennahan v. N.C. School of the Arts, 177 N.C. App. 806, 808, 630 S.E.2d 197, 199 (2006) (internal quotations and citation omitted).
Here, the trial court granted summary judgment for Profile’s wholly owned subsidiary, Terra-Mulch Products, L.L.C. (“Terra-Mulch”) and plaintiffs’ Supervisor Hoffman, but denied Profile’s motion for summary judgment. Profile asserts four substantial rights: (1) the possibility of inconsistent verdicts between Profile, Terra-Mulch, and Hoffman; (2) its right to exclusivity of the Industrial Commission to adjudicate the claims by an employee of its wholly owned subsidiary; (3) the possibility of significant conflicts between Profile and Terra-Mulch; and (4) creating conflict representation for Profile’s counsel, impairing Profile’s substantial right to representation by its chosen counsel.
A party has a substantial right to avoid the risk of inconsistent verdicts. This Court held “[a] substantial right is affected when (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.” Estate of Redding v. Welborn, 170 N.C. App. 324, 328, 612 S.E.2d 664, 668 (2005) (internal quotation and citation omitted).
In Bernick v. Jurden, our Supreme Court held:
Plaintiff Bernick alleged in his complaint that the conduct of the defendants Jurden and the hockey club and that of the defendants Cooper caused his injuries. He has a right to have the issue of liability as to all parties tried by the same jury. In a separate trial against the defendants Jurden and the hockey club, the jury could find that the blow by Jurden’s hockey stick was not intentional, negligent, or was not the cause of plaintiff’s injury and damages. Then, if summary judgment in favor of the Cooper defendants were reversed on appeal, at the ensuing trial the second jury could find that plaintiff’s injuries were the result of Jurden’s or the hockey club’s negligent, intentional, or even malicious conduct, and either not foreseeable by or not within the scope of any warranties made by the Cooper defendants. Thus, the plaintiff’s right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries is indeed a substantial right.
*160306 N.C. 435, 439, 293 S.E.2d 405, 408-09 (1982) (emphasis supplied).
This Court has also held:
In this case, the trial court granted LifeUSA’s motion for summary judgment disposing of all claims against LifeUSA. However, claims still existed against the remaining defendants, including Welborn and Russell. Since plaintiffs’ theory of LifeUSA’s liability is that LifeUSA is vicariously liable for Welborn’s and Russell’s actions, many of the same factual issues would apply to the claims against defendants and inconsistent verdicts could result from separate trials [or hearings]. Therefore, we find that a substantial right is affected and that this appeal is properly before this Court.
Estate of Redding, 170 N.C. App. at 329, 612 S.E.2d at 668 (emphasis supplied).
The majority’s opinion dismisses the possibility of inconsistent verdicts and states, “any verdict for or against Terra-Mulch (the employer) or Hoffman (the co-worker) would be on Woodson and Pleasant claims, while a verdict on the claim against Profile would be based on the claims for negligence as alleged in the complaint. These claims have different elements, requiring different proof . . . .” This assertion is wholly unsupported by the record.
Plaintiffs are bound by their pleadings in their third amended complaint and cannot assert a new or different claim on appeal. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (“[T]he law does not permit parties to swap horses between courts in order to get a better mount” on appeal.).
Plaintiffs seek judgment against all defendants jointly and severally and asserted identical claims against all defendants. These claims, having similar facts and witnesses, rise and fall together and should be adjudicated before one tribunal to avoid risks to defendants of inconsistent judgments and recoveries. Plaintiffs have asserted no basis for separate tribunals to adjudicate identical claims where Profile’s potential liability is solely derivative.
II. Exclusivity of Industrial Commission for Negligence Claims
In Woodson v. Rowland, our Supreme Court held:
[W]hen an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to *161employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the [Workers’ Compensation Act]. Because . . . the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers’ compensation claims may also be pursued. There may, however, only be one recovery.
329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991) (emphasis supplied).
If the plaintiff-employee fails to establish that the defendant-employer “intentionally engage [d] in misconduct knowing it [was] substantially certain to cause serious injury or death to employees,” the Workers’ Compensation Act limits the liability of an employer for personal injury or death of an employee and places exclusive jurisdiction for a plaintiff-employee’s claims before the Industrial Commission. Id.\ N.C. Gen. Stat. § 97-9 (2005).
Here, plaintiffs asserted in their third amended complaint identical allegations of a Woodson claim against Profile and Terra-Mulch:
25. Defendants engaged in misconduct which was grossly negligent, willful and wanton, and substantially certain to lead to death or serious injury with respect to operation of the plant.
26. As a direct and proximate result of the misconduct of Defendants and their agents and employees, which misconduct was grossly negligent, willful and wanton, and substantially certain to result in death or serious injury, Plaintiff Lennie Hamby suffered serious, permanent injuries. As a direct and proximate result of such misconduct, Plaintiff Lennie Hamby has been damaged in an amount in excess of $10,000.00.
Plaintiffs did not allege separate claims nor seek separate recovery solely against Profile. By alleging exactly the same allegations against all defendants, plaintiffs conceded that Profile’s liability is not independent of and is derivative of Terra-Mulch’s liability. The majority’s opinion erroneously asserts that Profile is subject to an ordinary negligence claim, as opposed to a Woodson claim and that jurisdiction in the superior court is proper. This notion ignores established precedents.
Profile is the sole member/manager of Terra-Mulch. If Profile is subjected to a civil trial, and a jury finds Profile liable for plaintiff *162Lennie Hamby’s injuries, inconsistent verdicts or recoveries could result from potential liability of Terra-Mulch and Hoffman before the Industrial Commission.
The Workers’ Compensation Act provides:
Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.
N.C. Gen. Stat. § 97-9 (emphasis supplied).
In Altman v. Sanders, our Supreme Court held, the phrase “those conducting his business,” in this statute should be construed liberally for the employer. 267 N.C. 158, 161, 148 S.E.2d 21, 24 (1966) (“[T]he phrase, ‘those conducting his (the employer’s) business,’ which appears in the . .. statute,, should be given a liberal construction. One must be deemed to be conducting his employer’s business, within the meaning of this statute, whenever he, himself, is acting within the course of his employment, as that term is used in the Workmen’s Compensation Act.”).
The issue before us is whether Profile was “conducting [the] business” of Terra-Mulch. N.C. Gen. Stat. § 97-9. The trial court held plaintiffs had failed to establish a Woodson claim and granted summary judgment in favor of Terra-Mulch and Hoffman. Plaintiffs did not cross appeal that judgment and did not assert any error in that ruling.
Profile’s liability is not primary but is derivative only of any liability of Terra-Mulch. Since plaintiffs asserted no independent claims against Profile, asserted identical claims against Terra-Mulch and Hoffman, and seeks joint and several recovery against all defendants, Profile’s motion for summary judgment should also have been granted if Profile was “conducting [the] business” of Terra-Mulch. Id. The trial court should have also granted summary judgment for Profile, placing all of plaintiffs’ workers’ compensation claims before the Industrial Commission and erred in denying Profile’s motion.
TIT. Standard of Review
In a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: 1) Proving that an essen*163tial element of the opposing party’s claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Hines v. Yates, 171 N.C. App. 150, 157, 614 S.E.2d 385, 389 (2005) (internal quotations and citations omitted). “On appeal, an order allowing summary judgment is reviewed de novo." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).
IV. Limited Liability Company
Our Supreme Court has stated, “We have held that the protection of [the Workers’ Compensation Act], against suit by an injured employee, extends to officers of the corporate employer, whose acts are such as to render the corporate employer liable therefor.” Lewis v. Barnhill, 267 N.C. 457, 467, 148 S.E.2d 536, 544 (1966).
The facts at bar concerns a limited liability company as the chartered entity, rather than a corporation. The principles set forth in Lewis equally apply here. Like a corporation, Profile and Terra-Mulch received a charter from the Secretary of State and can act only through its members/managers. See N.C. Gen. Stat. § 57C-l-28(c) (2005) (“a certificate of existence or authorization issued by the Secretary of State may be relied upon as conclusive evidence that the domestic or foreign limited liability company is in existence or is authorized to transact business in this State.”); see also N.C. Gen. Stat. § 57C-2-20(c) (2005) (“all decisions to be made by the organizers at such meetings shall require the approval, consent, agreement, or ratification of a majority of the organizers”).
Plaintiffs’ third amended complaint alleged:
6. Upon Information and belief, Terra-Mulch is a wholly-owned subsidiary of Profile Products. Upon information and belief, Profile Products controls and directs Terra-Mulch with respect *164to operation of the business known as Profile Products in Conover, North Carolina. Upon information and belief, Defendant Profile Products dominates and controls Defendant Terra-Mulch and is the alter ego of Defendant Terra-Mulch.
Plaintiffs concede if Terra-Mulch’s acts bind Profile to tort-liability, Profile should be afforded the exclusivity of jurisdiction and the same protection against multiple inconsistent verdicts before the Industrial Commission under the Workers’ Compensation Act. Defendants asserted in their answer, “Profile is the sole member of Terra-Mulch and that, as such, it has and exercises control and direction ovér the business of Terra-Mulch, its subsidiary[.]” Both Profile and Terra-Mulch are chartered as limited liability companies. Plaintiffs and the majority’s opinion concede Profile’s relationship as sole member-manager of Terra-Mulch.
N.C. Gen. Stat. § 57C-3-23 (2005) entitled “Agency power of managers,” provides,
Every manager is an agent of the limited liability company for the purpose of its business, and the act of every manager, including execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business of the limited liability company of which he is a manager, binds the limited liability company.
(emphasis supplied).
N.C. Gen. Stat. § 57C-l-03(13)(i) (2005) defines, “manager,” as, “with respect to a domestic limited liability company, any person designated in, or in accordance with, G.S. 57C-3-20(a).” The Operating Agreement between Profile and Terra-Mulch states, “[t]he right to manage, control and conduct the business and affairs of [Terra-Mulch] shall be vested solely and exclusively in [Profile] . . . .” Undisputed evidence shows Profile is the sole member-manager of Terra-Mulch and has the authority, both by statute and pursuant to its operating agreement, to control and bind its wholly owned subsidiary Terra-Mulch.
As our Supreme Court stated in Woodson, North Carolina law protects officers, managers, and directors of corporations from liability to their employees under the Workers’ Compensation Act and establishes exclusive jurisdiction for said claims before the Industrial Commission. Woodson, 329 N.C. at 347, 407 S.E.2d at 232.
*165Regarding a limited liability company, “A manager’s agency power is similar to that of a corporate officer and a general partner.” Russell M. Robinson, Robinson on North Carolina Corporation Law, §34.04[2] fn. 22 (7th ed. 2005). A manager’s authority is “equivalent to that of both the directors and the officers of a corporation together.” Id. at § 34.04. Thus, the manager of a limited liability company has the same powers and plays substantially the same roles to that of a director or officer of a corporation and is entitled to same exclusivity of jurisdiction by the Industrial Commission to resolve plaintiff’s claims.
Our Supreme Court has afforded the corporate director or officer protection from liability from workers’ compensation claims. Woodson, 329 N.C. at 347, 407 S.E.2d at 232. The manager-member of a limited liability company should be accorded the same protection. See id.-, Russell M. Robinson, Robinson on North Carolina Corporation Law, §34.04[2] fn. 22. Profile is liable to plaintiffs only if Terra-Mulch is liable to plaintiffs. Plaintiffs asserted a substantial right to place all of Plaintiff Lennie Hamby’s claims before one tribunal to avoid the risks of inconsistent recoveries.
V. Conclusion
By granting Terra-Mulch and Hoffman’s motions for summary judgment on Woodson claims, and remanding plaintiffs’ claims to the Industrial Commission, while denying Profile’s motion for summary judgment, the trial court erred and subjects Profile to risks of inconsistent verdicts from separate tribunals adjudicating identical claims. Plaintiffs failed to cross-appeal the trial court’s order granting summary judgment to Terra-Mulch and Hoffman and placing exclusive jurisdiction for plaintiffs’ claims before the Industrial Commission.
As the sole member-manager of Terra-Mulch/ Profile could only be found liable to plaintiffs in the superior court under a Woodson claim, which plaintiffs acknowledged does not exist. All defendants are protected from a civil action asserting general negligence liability under the exclusivity provisions of N.C. Gen. Stat. § 97-9. A jury could potentially find Profile liable under Woodson, even though the trial court dismissed Terra-Mulch, its wholly owned subsidiary and supervisor employee Hoffman from civil liability. The potential for inconsistent verdicts provides Profile the substantial right to immediate review. Redding, 170 N.C. App. at 328, 612 S.E.2d at 668. Like its wholly owned subsidiary, Terra-Mulch, Profile, as the sole member-manager is equally entitled to have plaintiffs’ claims adjudicated *166by the Industrial Commission. The trial court’s denial of Profile’s motion for summary judgment is error. I vote to reverse and respectfully dissent.