Himmelstein v. Comcast of the District, L.L.C.
2012 U.S. Dist. LEXIS 174243
D.C. Cir.2012Background
- Himmelstein terminated Comcast service in June 2010; equipment removal occurred, but a modem was left behind and $220 charged for unreturned equipment.
- A collection agency (CPA) pursued the $220 balance and it was reported to national credit bureaus.
- Himmelstein returned the modem and sought correction; Comcast allegedly reassured him the issue would be resolved, but the credit report remained.
- The credit-reporting error contributed to Himmelstein paying about $26,000 more in mortgage refinancing costs.
- Plaintiff asserted four claims against Comcast (Counts I–IV) and three against CPA (Counts V–VII). Comcast moved to dismiss Counts II–IV under Rule 12(b)(6); the court allowed Count III to proceed, and denied Counts I and CPA-related claims for still-other reasons.
- The court later granted the motion to dismiss Counts II and IV, denying dismissal of Count III, with Counts I and CPA to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of implied covenant claim viability | Himmelstein alleges repeated misrepresentations show bad faith. | Comcast’s errors were mere mistakes, not bad faith. | Count II dismissed for lack of bad faith. |
| Negligence claim viability | Creditor-debtor relationship creates independent duty. | No independent duty from a creditor-debtor relationship. | Duty unsettled; claims may proceed pending discovery. |
| Liability limitation clause effect | Limitation clause does not bar negligence damages here. | Limitation applies to certain enumerated harms only. | Limitation does not bar the alleged consequential damages at this stage. |
| Constructive fraud plausibility | Confidential relationship not required; alleged reliance supported. | Confidential relationship required; no reliance shown. | Count IV dismissed for lack of confidential relationship and reliance. |
Key Cases Cited
- Allworth v. Howard Univ., 890 A.2d 194 (D.C.2006) (implied covenant duties; contract performance and good faith standard)
- Hais v. Smith, 547 A.2d 986 (D.C.1988) (recognition of implied covenant in contracts)
- Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C.2011) (duty of care; existence of independent tort duty in controversial context)
- Essroc Cement Corp. v. CTI/DC, Inc., 740 F.Supp.2d 131 (D.D.C.2010) (fraud elements; constructive fraud specifics in D.C. law)