concurring in part and dissenting in part.
I respectfully disagree with the majority’s conclusion that the trial court did not err in allowing Metric to recover ESSI’s damages from HSPE.
In Warren Bros. Co. v. North Carolina Dept. of Transport., 64 N.C. App. 598, 307 S.E.2d 836 (1983), a provision in the contract between the owner and general contractor provided that a subcontractor may not sue the owner for damages.1 This Court held that the contractor may not assert against the owner any damages alleged to have been suffered by the subcontractor. Id. at 600, 307 S.E.2d at 838. The Court in Warren Brothers further stated: “[T]he subcontractor may not do indirectly through plaintiff what it could not do directly by suit against the defendant.” Id.
However, the majority cites Bolton Corp. v. T. A. Loving Co., 94 N.C. App. 392, 380 S.E.2d 796, disc. rev. denied, 325 N.C. 545, 385 S.E.2d 496 (1989) for the proposition that the Warren Brothers rule is inapplicable in the instant case. As the majority acknowledges, the instant case is clearly distinguishable from Bolton. In Bolton, this Court held that in a suit between two contractors, a contractor may assert damages suffered by its subcontractor as part of the contractor’s damages. Id. at 408-09, 380 S.E.2d at 806-07.
In contrast, the case before us turns on whether Metric, a first-tier subcontractor may assert the damages of its subcontractor, ESSI, a second-tier subcontractor, in a suit against HSPE, the general contractor. I believe the instant case is closely analogous to APAC-Carolina v. Greensboro-High Point Air., 110 N.C. App. 664, 431 S.E.2d 508, disc. review denied, 335 N.C. 171, 438 S.E.2d 197 (1993). In APAC-Carolina, this Court declined an opportunity to apply Bolton to the facts before it. In that case, a contractor attempted to assert the damages of its subcontractor in a suit against the owner. This Court stated:
We conclude that APAC [the contractor] did not have standing to assert any claims on behalf of Sprinkler [the subcontractor]. Sprinkler had no claim against defendants [the general contractor] on its own behalf. In both Warren and Bolton II [Bolton Corp. v. State of North Carolina, 95 N.C. App. 596, 383 S.E.2d 671 (1989), disc. review denied, 326 N.C. 47, 389 S.E.2d 85 *542(1990)], the Court clearly stated that a general contractor may not assert a claim on behalf of a subcontractor if that subcontractor could not assert the claim itself. Thus, APAC may not bring its claim of $226,000 on behalf of Sprinkler.
Id. at 671-72, 431 S.E.2d at 512.
Similarly, I believe that in the case sub judice, Metric, the first-tier subcontractor, cannot assert the damages of ESSI, the second-tier subcontractor. It is true that in the case before us a first-tier subcontractor wishes to assert the damages of its second-tier subcontractor, whereas APAC-Carolina involved the attempted assertion of damages by a contractor on behalf of its subcontractor. However, the language and rationale of Warren Brothers apply equally to both APAC-Carolina and the instant case. In both cases, a party unable to assert damages on its own behalf attempted to assert damages through another party which contracted with the wrongdoer. Such an assertion of the damages of another is precisely what Warren Brothers forbids. In addition, the fact that the subcontractor in APAC-Carolina was a named plaintiff whereas ESSI is not a named plaintiff in the instant case is not a persuasive distinction for me. The title of the action cannot be allowed to determine its outcome. Under the majority’s rationale, a lower-tier subcontractor could simply take a voluntary dismissal of its suit and thus easily evade the strictures of APAC-Carolina.
I believe we are bound by APAC-Carolina and Warren Brothers. Were this a case of first impression, the majority’s position would be more persuasive. However, only our Supreme Court or, in appropriate instances, the legislature may change a prior decision of this Court.
I respectfully dissent.
. There is a similar provision in the contract relevant to the case sub judice.