                          STATE OF MICHIGAN

                           COURT OF APPEALS



330 S. CEDAR STREET LLC,                                           UNPUBLISHED
                                                                   January 26, 2017
              Plaintiff-Appellant,

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

              Defendants-Appellees.


Before: BECKERING, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

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

       Plaintiff owns and operates a car wash facility at 330 South Cedar Street, Imlay City,
Michigan. The car wash has one automatic, touchless bay and four self-service bays. The car
wash is not attended. Defendant1 drove a vehicle onto plaintiff’s property to purchase a car
wash. When defendant attempted to use plaintiff’s automated car wash, his vehicle got stuck and
when he tried to extricate the vehicle, severe damage resulted to the equipment and door of the
car wash. After causing the damage, defendant left the scene without reporting the incident to
law enforcement authorities.

       In its amended complaint, plaintiff alleged three counts against defendant: negligence,
gross negligence, and intentional damage to property. Plaintiff 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 that 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 defendant intentionally caused the harm that resulted to plaintiff’s car
wash facility. The trial court agreed with defendants and, while relying on MCL 500.3135(3)(a),


1
 Our use of the singular term “defendant” throughout this opinion refers to defendant Carol
Scholz.


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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 within 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 relief is appropriate 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 support 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 to judgment as a matter of law
pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual
allegations, affidavits, or other documentary evidence and construe them in the plaintiff’s favor.”
Id. at 222-223.

        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition pursuant to MCR 2.116(C)(10), which tests the factual sufficiency of the complaint,
to determine whether the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118-119; 597 NW2d 817 (1999). In doing so, this Court considers “the
pleadings, admissions, and other evidence submitted by the parties 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 issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Id. A genuine issue of material fact
exists “when reasonable minds could differ on an issue after viewing 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 interpretation 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 liability 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 death, 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 500.3135(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 within this state of a motor vehicle with respect to
       which the security required by [MCL 500.3101] was in effect is abolished except
       as to:

               (a) Intentionally caused harm to persons or property. Even though a
       person knows that harm to persons or property is substantially certain to be
       caused by his or her act or omission, the person does not cause or suffer that harm
       intentionally if he or she acts or refrains from acting for the purpose of averting

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       injury to any person, including himself or herself, or for the purpose of averting
       damage to tangible property.

       Our Supreme Court, while interpreting MCL 500.3135(3)(a), stated,

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

        Here, there is no evidence and no suggestion that defendant acted 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, evidence 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 genuine issue of material fact
regarding whether defendant acted intentionally, within the meaning of MCL 500.3135(3)(a),
when he damaged the car wash. Plaintiff contends that the evidence shows that once defendant’s
vehicle was stuck in the automatic car wash bay, defendant took it upon himself to forcibly move
the vehicle through the car wash, which caused the damage. Plaintiff 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 and the trial court erred when it granted
summary disposition in favor of defendant.

        In sworn deposition testimony, defendant admitted that he caused the damage in the car
wash when his vehicle got stuck in the automatic bay, but he denied that he intentionally caused
the damage and stated that he did not know why his truck got caught or how the damage
happened when the car wash door fell on his truck. In his deposition testimony, the owner of
plaintiff car wash, Lawrence Dail, testified that after defendant paid $8 for a car wash, he
intentionally drove his truck, which was not an appropriate size for the automatic bay, into the
automatic bay and got stuck. Dail also testified that defendant caused extensive damage to the
car wash door and equipment when he intentionally backed out of the bay. But Dail also
expressly testified that he had no reason to think that defendant intentionally caused the damage
to the car wash facility. We conclude that, even when reviewing the evidence in the light most
favorable to plaintiff, the trial court’s determination is correct—defendant “perhaps exercised
poor judgment” when he entered and exited the car wash and thereby caused damage to the car
wash door and equipment, but plaintiff failed to present any evidence that defendant actually
intended to cause the resulting harm.

         In sum, we hold that the trial court properly found that the evidence did not support the
contention that defendant intentionally caused the harm that resulted 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.

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Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.



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




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