Submitted June 10, 2015
Case Closed July 1, 2015.
Court Below: Superior Court of the State of Delaware, in and for New Castle County. C.A. No. 12C-09-157 VLM.
Kevin W. Gibson, Esquire, Gibson & Perkins, P.C., New Castle, Delaware, for Appellant.
Bruce W. McCullough, Esquire, Bodell Bové, LLC, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice; HOLLAND and VAUGHN, Justices.
STRINE, Chief Justice:
This is a regrettable case. In the name of controlling litigation costs, a heating and
air conditioning contractor (" Blue Hen" ) sued Christian Brothers Risk Pooling Trust as subrogee for the Little Sisters of the Poor (" Little Sisters of the Poor" ) for malicious prosecution. The supposedly malicious cause of action concededly arose out of a real problem for the Little Sisters of the Poor. In January 2008, the Little Sisters of the Poor contracted with Blue Hen to maintain the heating, ventilation, and air conditioning equipment at its nonprofit residential nursing home facility. Two months later, the nursing home's air conditioner broke, requiring the unit to be replaced at a cost of $168,740. The Little Sisters of the Poor filed suit against Blue Hen, alleging that the unit's failure was due to Blue Hen's negligence in inspecting and maintaining the equipment. After briefing and oral argument, the Superior Court determined that the Little Sisters of the Poor had not produced sufficient evidence of Blue Hen's negligence, and granted Blue Hen's motion for summary judgment.
Rather than seek its costs in that lawsuit, or simply accept its trial victory, Blue Hen initiated another suit against the Little Sisters of the Poor, alleging malicious prosecution and abuse of process. Blue Hen concedes that the Little Sisters of the Poor initially had good cause to sue. But it contends that during the course of that litigation, the Little Sisters of the Poor should have realized that its suit lacked probable cause, and accordingly dismissed its claims against Blue Hen. Although Delaware courts have historically determined that claims for malicious prosecution must involve lack of probable cause at the beginning of litigation, Blue Hen urged the Superior Court " to make law" and extend the tort to punish plaintiffs who continue litigation without probable cause.
The Superior Court refused to enlarge the tort of malicious prosecution, which has historically been disfavored by Delaware courts, and determined that under the tort as our courts have defined it, Blue Hen failed to demonstrate that the Little Sisters of the Poor acted maliciously in bringing its action. The Superior Court similarly rejected Blue Hen's abuse of process claim. The Superior Court thus granted summary judgment to the Little Sisters of the Poor.
We now affirm the judgment of the Superior Court. Whatever the original wisdom for sanctioning the tort of malicious prosecution, we refuse to extend it to encompass claims properly brought before the court in the first instance. As important, there is no basis in the summary judgment record to support a rational jury finding that the Little Sisters of the Poor acted maliciously in the original suit, rather than in a good faith belief that Blue Hen was responsible for the serious losses that the Little Sisters of the Poor had suffered.
For many years before the events giving rise to this suit, the Little Sisters of the Poor relied on Thomas Hoback to repair and maintain the HVAC systems in their nonprofit nursing home facility, the Jeanne Jugan Residence located in Newark, Delaware. The Residence serves 80 low-income residents, consistent with the Little Sisters of the Poor's mission to care for the elderly poor. In January 2008,
when Hoback went to work for Blue Hen, he brought the Little Sisters of the Poor's account with him. On January 25, the Little Sisters of the Poor signed a contract with Blue Hen to inspect and maintain the facility's heating, ventilation, and air conditioning equipment, including a Carrier Model 30GX packaged Air Cooled Chiller (the " Chiller" ) installed in 1999. The contract provides, in relevant part, that the parties' agreement " covers all labor necessary for the routine inspection, maintenance, and repair of all the HVAC equipment including evening and holiday emergency services."  The contract also sets forth a " Scope of Maintenance Schedule," under which Blue Hen agreed to perform " inspection of the Carrier Chiller (seasonal) for proper operation," including " supply and return temperature of chiller water." 
According to a demand letter the Little Sisters of the Poor later sent to Blue Hen, the Chiller was placed on idle mode from October through April, and during that period, Blue Hen's responsibility under the contract was to inspect the unit once a week to ensure it was continuing to function. Roughly a month after the contract was signed with Blue Hen, on March 3, 2008, Blue Hen's technician was conducting his required weekly inspection of the Chiller when he realized that something was wrong with the unit. The technician determined that a pipe had frozen and burst, which let water into the unit, causing the system to fail. The Chiller's computer monitoring system noted that the failure occurred on February 19, 2008, roughly two weeks before the Blue Hen technician observed a problem. Blue Hen informed the Little Sisters of the Poor that the damage to the Chiller was not reparable, and it needed to be replaced with a new unit at a cost of $168,740, no small sum to the nonprofit Little Sisters of the Poor.
The nursing home's maintenance supervisor, J.B. Rorabaugh, determined that Blue Hen was responsible for the Chiller's failure. In a sworn statement of proof of loss submitted to the Little Sisters of the Poor's insurer, Christian Brothers Risk Pooling Trust, Rorabaugh opined that the Chiller failed due to Blue Hen's negligence in maintaining the unit because it " did not set up system properly for winter conditions."  At some point before the Little Sisters of the Poor initiated its lawsuit against Blue Hen, Rorabaugh reversed himself, and determined that the failure was due to a mechanical design flaw rather than any fault of Blue Hen's.
In addition to Rorabaugh's opinion, the Little Sisters of the Poor engaged two engineering experts to inspect the broken Chiller for the purpose of determining liability. Both experts determined that the failure was a result of negligent inspection and maintenance. In their view, the earlier failure by Hoback--who Blue Hen brought on board and used to secure the contract with the Little Sisters of the Poor--to shut the Chiller down properly for the winter was not the primary reason for ...