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### STATE OF MICHIGAN

COURT OF APPEALS

330 S. CEDAR STREET LLC,

Plaintiff-Appellant, UNPUBLISHED January 26, 2017

v No. 329260 Lapeer Circuit Court CARL SCHOLZ and SCHOLZ AUTO PARTS, INC., LC No. 14-048193-ND

Defendants-Appellees.

Before: B ECKERING , P.J., and S AWYER and S AAD , JJ.

P ER C URIAM

. In this case to recover monetary damages for harm done to an a utomated car wash facility, plaintiff appeals the trial court’s order that grante d summary disposition in favor of defendants. For the reasons provided below, we affirm.

Plaintiff owns and operates a car wash facility at 330 South C edar Street, Imlay City, Michigan. The car wash has one automatic, touchless bay and fo ur self-service bays. The car wash is not attended. Defendant 1 drove a vehicle onto plaintiff’ s property to purchase a car wash. When defendant attempted to use plaintiff’s automated ca r wash, his vehicl e got st uck and when he tried to extricate the vehicle, severe damage resulted to the equipment and door of the car wash. After causing the damag e, defendant left the scene w ithout reporting the incident to law enforcement authorities.

In its amended complaint, plaintiff alleged three counts again st defendant: negligence, gross negligence, and intentiona l damage to property. Plaintif f claimed that the damages included structural building damage and damage to the automated car wash system components. Defendants asserted in their motion for summary disposition tha t plaintiff’s claims were barred by immunity granted by Michigan’s no-fault act, MCL 500.3101 et seq ., because plaintiff could provide no evidence that defenda nt intentionally caused the har m that resulted to plaintiff’s car wash facility. The trial court agreed with defendants and, whi le relying on MCL 500.3135(3)(a),

1 Our use of the singular term “defendant” throughout this opini on refers to defendant Carol Scholz.-2- granted defendants’ motion for summary disposition pursuant to both MCR 2.116(C)(7) and (C)(10).

Plaintiff argues on appeal that the trial court erred because a genuine issue of material fact exists regarding whether defendant acted intentionally wit hin the meaning of MCL 500.3135(3)(a) when he damaged plaintiff’s car wash facility. This Court reviews a grant of summary disposition de novo. Kincaid v Cardwell , 300 Mich App 513, 522; 834 NW2d 122 (2013). In accordance with MCR 2.116(C)(7), a party may file a motion to dismiss a lawsuit when “[e]ntry of judgment, dismissal of the action, or other re lief is appropria te because of . . . immunity granted by law[.]” “When considering a motion brought under MCR 2.116(C)(7), it is proper for this Court to review all the material submitted in s upport of, and in opposition to, the plaintiff’s claim.” Bronson Methodist Hosp v Allstate Ins Co , 286 Mich App 219, 222; 779 NW2d 304 (2009). “In determining whether a party is entitled t o judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plai ntiff’s well-pleaded factual allegations, affidavits, or other documentary evidence and cons true them in the plaintiff’s favor.” Id. at 222-223.

This Court reviews de novo a tr ial court’s decision regarding a motion for summary disposition pursuant to MCR 2.116(C )(10), which tests the factu al sufficiency of the complaint, to determine whether the moving party is entitled to judgment a s a matter of law. Maiden v Rozwood , 461 Mich 109, 118-119; 597 NW2d 817 (1999). In doing so, thi s Court considers “the pleadings, admissions, and other evidence submitted by the part ies in a light most favorable to the nonmoving party.” Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition is appropriate if there is no genuine issu e regarding any material fact and the moving party is entitled to judgment as a mat ter of law.” Id . A genuine issue of material fact exists “when reasonable minds could differ on an issue after vi ewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008). This Court reviews de novo the proper interpret ation of statutes. Taylor v Kent Radiology, PC , 286 Mich App 490, 515; 780 NW2d 900 (2009).

In enacting MCL 500.3135, our Legislature “abolished tort liab ility for harm caused while owning, maintaining, or using a motor vehicle in Michigan .” American Alternative Ins Co, Inc v York , 470 Mich 28, 30; 679 NW2d 306 (2004). “The primary exception to this broad immunity was that a suit could be maintained when there was a d eath, serious impairment of body function, or permanent serious disfigurement.” Id . at 30-31. Our Legislature, however, enacted another exception that is relevant in this case, MCL 50 0.3135(3)(a), which pertains to when a tortfeasor has intentionally caused harm. Id . at 31. MCL 500.3135(3)(a) provides:

(3) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use w ithin this state of a motor veh icle with respect to which the security required by [MCL 500.3101] was in effect is abolished except
as to:

(a) Intentionally caused harm t o persons or property. Even th ough a person knows that harm to persons or property is substantially certain to be caused by his or her act or omi ssion, the person does not cause or suffer that harm intentionally if he or she acts or refrains from acting for the purpose of averting-3- injury to any person, including hi mself or herself, or for the purpose of averting damage to tangible property.

Our Supreme Court, while int erpreting MCL 500.3135(3)(a), stat ed,

The first sentence sets out the general class of injuries for w hich the tortfeasor is liable, i.e., harm that is intentionally caused. The second se ntence then presents an exception to this class: when the tortfeasor is attempting to avert injury, he is not liable for harm even if the h arm was substantially certain to result. Harm resulting from an attempt to ave rt injury is not intentionally caused.” [ American Alternative Ins Co , 470 Mich at 31.]

Here, there is no evidence and no suggestion that defendant ac ted to avert injury. Thus, the sole question before us is whether the evidence shows that defendant “intentionally caused harm” to plaintiff’s property. In other words, the inquiry is focused on “whether the defendant intended to cause the harm that resulted.” Id. at 32. Importantly, eviden ce of an intent to do the act which causes the harm is insufficient; there must be intent to cause harm. Hicks v Vaught
, 162 Mich App 438, 440; 413 NW2d 28 (1987).

Plaintiff argues that there is ample evidence to create a genu ine issue of material fact regarding whether defendant act ed intentionally, within the mea ning of MCL 500.3135(3)(a), when he damaged the car wash. Plaintiff contends that the evid ence shows that once defendant’s vehicle was stuck in the automa tic car wash bay, defendant took it upon himself to forcibly move the vehicle through the car wash, which caused the damage. Pla intiff also relies on the contention that defendant fled the scene after he destroyed the car wash and later lied about it. Plaintiff asserts that these facts created a question of fact a nd the trial court erred when it granted summary disposition i n favor of defendant.

In sworn deposition testimony, de fendant admitted that he caus ed the damage in the car wash when his vehicle got stuck in the automatic bay, but he de nied that he intentionally caused the damage and stated that he did not know why his truck got ca ught or how the damage happened when the car wash door fell on his truck. In his depo sition testimony, the owner of plaintiff car wash, Lawrence Dail, testified that after defenda nt paid $8 for a car wash, he intentionally drove his truck, which was not an appropriate siz e for the automatic bay, into the automatic bay and got stuck. Dail also testified that defendan t caused extensive damage to the car wash door and equipment when h e intentionally backed out of the bay. But Dail also expressly testified that he had no reason to think that defenda nt intentionally caused the damage to the car wash facility. We conclude that, even when reviewin g the evidence in the light most favorable to plaintiff, the trial court’s determination is corr ect—defendant “perhaps exercised poor judgment” when he entered and exited the car wash and ther eby caused damage to the car wash door and equipment, but plaintiff failed to present any ev idence that defendant actually intended to cause t he resulting harm.

In sum, we hold that the trial court properly found that the e vidence did not support the contention that defendant intentionally caused the harm that re sulted to plaintiff’s car wash facility. Accordingly, because plaintiff’s claims were barred under MCL 500.3135(3)(a), the trial court did not err when it granted summary disposition in favor of defendants.-4- Affirmed. Defendants, as the pr evailing parties, may tax cost s pursuant to MCR 7.219.

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad