dissenting.
In an effort to implement the Gas Act’s policy of protecting natural gas consumers, the majority nullifies the defense of voluntary payment, OCGA § 13-1-13, against claims arising under the Act’s private right of action. But the Act itself never mentions, let alone abrogates, this or any other defense. Because our well-developed law of consumer class actions authorizes the defense of voluntary payment in such cases, and because that defense actually bars these plaintiffs’ claims, I respectfully dissent.
According to the majority, the gist of this suit is that plaintiffs were charged “more under the Original Plan than they would have been charged under the New Plan.” But the second amended complaint itself concedes that customers might be charged a higher service charge under the New Plan than under the Original Plan, depending on their credit scores. Plaintiffs also concede that their billing statements reflected the charges consistently applied to their accounts under the Original Plan and that any lower prices charged to other customers were available to them on the Georgia Natural Gas website.
The majority avoids considering the factitiousness of plaintiffs’ actual claims by holding as a matter of law that the private right of action created in OCGA § 46-4-160.5 is in “irreconcilable conflict” with the voluntary payment doctrine. But it is commonplace that statutory schemes such as the Gas Act are in derogation of the common law and must therefore be strictly construed. “Where a statute gives a right which did not exist at common law, it must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” (Punctuation omitted.) Nicholl v. Great Atlantic &c. Co., 238 Ga. App. 30, 39 (517 SE2d 561) (1999). Neither OCGA § 46-4-160.5 nor any other part of the Gas Act purports to abrogate any common law or statutory defense. As the Northern District of Georgia explained when it dismissed the same claims before us today, there is “no actual conflict between the statute barring recovery of voluntary payments and the Gas Act’s provision for a right of private action” because plaintiffs “could have refused to pay the allegedly improper charges and then brought suit under [OCGA] § 46-4-160.5 for damages they suffered as a result.” Robbins v. SCANA Energy Marketing, Case No. 1-08-CV-640-BBM (N.D. Ga. 2008).
*177This Court has authorized voluntary payment as a defense to consumer class actions in opinions cited and followed by state and federal courts across the country. See Cotton v. Med-Cor Health &c., 221 Ga. App. 609, 611 (2) (472 SE2d 92) (1996) (physical precedent only) (affirming grant of motion to dismiss class action by hospital patients on the ground that the voluntary payment doctrine barred plaintiffs’ claims); Telescripps Cable Co. v. Welsh, 247 Ga. App. 282, 284-287 (1) (542 SE2d 640) (2000) (following Cotton and reversing denial of motion to dismiss class action by cable consumers on the ground that the voluntary payment doctrine barred plaintiffs’ claims). As the Missouri Court of Appeals noted in a recent opinion extending this line of our cases, “[t]he majority of jurisdictions support the use of the voluntary payment doctrine as an affirmative defense in actions to recover fees or surcharges alleged to be illegal.'’' (Emphasis supplied.) Huch v. Charter Communications, 2008 Mo. App. LEXIS 531 at *17 (April 15, 2008) (following both Cotton and Telescripps); see also Robbins, supra (following Cotton and Telescripps); Halle Dev. v. Anne Arundel County, 808 A2d 1280 (Md. App. 2002) (following Telescripps); Putnam v. Time Warner Cable, 255 Wis. 2d 447, 470 (649 NW2d 626) (2002) (following Telescripps); Time Warner Entertainment Co. v. Whiteman, 741 NE2d 1265, 1271 (Ind. Ct. App. 2001) (following Telescripps).
In the absence of authority from the law of consumer class actions, the majority turns to tax cases for its assertion that GNG cannot assert a voluntary payment defense. See Hawes v. Smith, 120 Ga. App. 158 (169 SE2d 823) (1969), citing Oxford v. Shuman, 106 Ga. App. 73, 79 (2) (c) (126 SE2d 522) (1962). As our Supreme Court has pointed out, however, a tax payment is “not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority.” Luke v. Dept. of Natural Resources, 270 Ga. 647, 648 (513 SE2d 728) (1999). Moreover, although the old version of the voluntary payment statute addressed itself to “[playments of taxes or other claims” (see Barker v. Federated Life Ins. Co., 111 Ga. App. 171, 173 (141 SE2d 206) (1965), quoting Civil Code 1933, § 20-1007), the modern version speaks only of “payment of claims,” an acknowledgment by the General Assembly that tax refund claims deserve separate treatment under the law. As for the tax cases themselves, Hawes relies on Oxford, which notes that the voluntary payment defense does not apply when “there [is] a specific statute relative to the tax collected,” (emphasis supplied) 106 Ga. App. at 79, and one of the two cases on which Oxford relies actually applied the defense to bar a tax refund claim. See State Revenue Comm. v. Alexander, 54 Ga. App. 295, 299 (187 SE 707) (1936) (reversing denial of Revenue Commission’s demurrer to taxpayer’s action where taxpayer made a voluntary payment of income tax without *178noting protest).
Decided June 2, 2009 Strickland, Brockington & Lewis,' Frank B. Strickland, Anne W. Lewis, Jason R. Doss, for appellants. Rogers & Hardin, Robert B. Remar, Jill E. Steinberg, Kimberly L. Myers, for appellee.Plaintiffs do not argue that GNG was prohibited from introducing a new standard variable offer, and the fact that GNG chose to entice new customers with rates that “might have” been lower than those charged to plaintiffs does not mean that plaintiffs’ bills, which accurately reflected the terms they agreed to, contained “billing errors.” But even if the bills could be construed as containing such errors in violation of the Gas Act, the voluntary payment defense would still apply. As Telescripps holds, in the absence of a mistake of fact, the “voluntary payment doctrine bars recovery even if the charges imposed were in violation of a statute.” (Emphasis supplied.) Telescripps, 247 Ga. App. at 287 (1), citing Cotton, 221 Ga. App. at 612.
Because the voluntary payment defense is available to GNG in this case, and because plaintiffs paid their natural gas bills “without a valid reason for failing to ascertain the truth,” Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 401 (349 SE2d 368) (1986), the trial court did not err when it granted GNG’s motion to dismiss. I therefore dissent.
I am authorized to state that Presiding Judge Blackburn and Judge Adams join in this dissent.