The consolidated cases in this interlocutory appeal flow from a putative class action filed against the city of Atlanta “the city” , K & V Meter Automation, LLC “K & V”, Khafra Operations, LLC, “Khafra”, Metals and Materials Engineers, LLC “MME”, and Neptune Technology Group, Inc. “Neptune”1 by residents who claim they were overcharged for water and sewage use. For the reasons set forth below, we affirm in part, and reverse in part in Case No A11A0769; affirm in Case No. A11A0770, affirm in part, and reverse in part in Case No. A11A0771; and affirm in part, and reverse in part in Case No. A11A0772. In their complaint against the defendants, the plaintiffs assert that they were overcharged for water consumption by the city after the city’s contractors K & V and M & M installed new automatic meter reading technology designed to transmit meter readings to mobile or hand-held devices. They assert that “a programming malfunction in computer software provided by K &V . . . caused a large number of meters to miscalculate water usage . . . .”; that K & V and MME “failed to properly calibrate registers to correspond with the size of meters they were intended to read;” that Khafra improperly estimated water usage; and that the city was refusing to hear appeals from its water customers despite ostensibly providing an appeal process. The plaintiffs also assert that the city failed to perform a proper investigation and survey of the existing meters prior to starting the project, causing the wrong equipment to be ordered and installed. Of the newly installed or refurbished meters sampled by auditors, more than 75 were found to be damaged in some way. Furthermore, the new meters which were functioning were found to be accurate only 87 of the time, far less than the 100 percent promised by the city. After filing responsive pleadings, the city, K & V, Khafra, and MME filed motions to dismiss the complaint. In a single order, the trial court granted in whole or in part, and denied in whole or in part the various motions. The trial court granted a certificate of immediate review to MME, the plaintiffs, and the city, and this court granted the parties’ applications for interlocutory review.
In Case No. A11A0769, the city asserts the trial court erred by 1 denying its motion to dismiss each named plaintiff in the putative class action who failed to provide an ante litem notice under OCGA § 36-33-5; and 2 denying its motion to dismiss three counts in the complaint that do not seek money damages under OCGA § 36-33-5. In Case No. A11A0770, the putative class plaintiffs assert the trial court erred by concluding 1 that they were not third-party beneficiaries of the contracts between the city and its contractors K & V, MME, and Khafra; and 2 that the economic loss rule precluded their negligence claims. In Case No. A11A0771 and A110772, the city’s contractors contend the trial court erred by denying their motion to dismiss the city’s cross-claims for indemnity and contribution as well as its claim for attorney fees.
