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In any civil lawsuit, it is important for all parties to comply with certain deadlines. Courts require filing of documents within a certain time, and failure to comply can result in an adverse decision. A major auto insurance company recently learned that lesson from the Georgia Court of Appeals

Kelly v. Harris

In this case, the plaintiff was in an automobile accident with the defendant, who was an uninsured motorist. Because the defendant was uninsured, the plaintiff also served his own insurance company, seeking benefits under his uninsured motorist coverage. The insurance company later joined the lawsuit.

The timeline of these events is critical to understanding the case. The accident occurred in May 2011. The plaintiff notified his insurance company of his intention to file an insurance claim in February 2012. He then sued the defendant in October 2012 and served the insurance company with a copy of the lawsuit a few days later. The insurance company formally joined the suit in February 2013.

In July 2013, the insurance company filed a motion for summary judgment, arguing it should not be held liable for any uninsured motorist benefits because the plaintiff did not comply with the terms of his policy. The insurer said the plaintiff had a duty to notify it “as soon as possible” about the accident but instead he waited eight months—the period from May 2011 until February 2012—before doing so.

But the plaintiff turned the tables on the insurance company. He argued the insurer had waited too long to respond to his lawsuit—more than 100 days between November 2012 and February 2013—and therefore had defaulted in the litigation. The trial court disagreed and granted the insurer’s motion for summary judgment.

A three-judge panel of the Court of Appeals sided with the plaintiff, however, and reversed the trial court. Judge Stephen Louis A. Dillard, writing for the panel, said the insurer clearly failed to file a timely response to the plaintiff’s lawsuit. The trial court had only ruled for the insurance company because of a “typographical error” in a previous Court of Appeals opinion that caused some confusion regarding the appropriate filing deadline. (Judge Dillard emphasized this was the fault of the Court of Appeals, not the trial judge.) Judge Dillard explained that once the plaintiff served a copy of his lawsuit on the insurer, the company then had 30 days to respond—not the 100-plus days it actually took.

In any civil lawsuit, a court may award default judgment to the plaintiff if the defendant does not file a timely answer. But since the trial court declined to hold the defendant in default due to its reliance on the aforementioned “typographical error,” the appeals court said the lower court must reconsider the issue and act accordingly. The appeals court did not otherwise address the merits of the underlying dispute, including the insurer’s argument the plaintiff failed to notify it of the accident in a timely manner.

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Expert testimony is usually the key to winning a medical malpractice case. Georgia law governs the admission of expert testimony. In a lawsuit alleging negligence against a medical professional, a proposed expert must be “a member of the same profession” as the defendant. In other words, a pharmacist cannot offer expert testimony in a malpractice case against a neurosurgeon.

A divided Georgia Court of Appeals recently addressed a much closer question: is a certified nurse midwife in “the same profession” as a registered professional nurse?

Dempsey v. Gwinnett Hospital System, Inc.

This case arose from the tragic birth of a child with permanent mental and physical disabilities. The child’s mother sued the hospital and the registered nurses who attended the birth for malpractice. She alleged the nurses committed negligence during the labor and delivery, which caused the child to be deprived of oxygen and suffer brain damage.

The case proceeded to trial and the jury ruled in favor of the mother. The defendants then asked for a new trial on the grounds that one of the mother’s experts was not qualified. The expert was a certified nurse midwife who previously worked as a registered nurse. Although she had supervised nurses as a midwife for more than five years, she was not working as a nurse at the time of the trial. Accordingly, the judge held she was not “in the same profession” as the defendants, and granted the motion for a new trial. The mother appealed that decision to the Court of Appeals.

A seven-judge Court of Appeals decided, by a vote of 4-3, to reverse the trial judge and reinstate the jury’s verdict in favor of the mother. Presiding Judge John J. Ellington wrote the majority opinion. He said Georgia law did not clearly define the phrase “member of the same profession.” He said the courts must therefore must look at “professional licensing laws and regulatory schemes” in deciding whether there is compatibility.

Here, Judge Ellington noted the mother’s expert was, in fact, both a registered nurse and a certified nurse midwife. In Georgia, a certified nurse midwife must also be licensed as a registered nurse, and in fact both professions are regulated by the same statewide body, the Georgia Board of Nursing. The licensing law further defines “nurses” without separately referencing nurse midwives. Based on all these factors, Judge Ellington said the expert was qualified to testify in this case.

Judge Carla Wong McMillan dissented. She argued that the law governing expert testimony “specifically enumerated” registered nurses and certified nurse midwives as separate occupations, and that law made no exception allowing one to testify against the other. Judge Wong said the “same profession” requirement was imposed by the Georgia legislature to tighten up the requirements for expert testimony, and the courts should not read exceptions into the law which are not clearly stated.

The Court of Appeals’ decision does not end this litigation. The defendants presented several additional arguments for setting aside the jury’s verdict. The Court of Appeals declined to hear those issues, however, because the trial court is yet to address them.

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Normally, if an employee acting within the scope of his or her employment commits negligence, the employer is considered liable. Under Georgia law, one exception to this rule exists when the employer “lends” the employee to another employer. If the employee then commits negligence while working on loan to the second employer, the first employer is not liable. The Georgia Court of Appeals recently applied this “borrowed-servant” exception in a personal injury lawsuit brought by a woman injured by a police officer.

Garden City v. Herrera

The incident took place in July 2010. The victim was driving her vehicle in Chathan County. A Garden City, Georgia, police officer, was driving his vehicle and struck the victim’s car. The victim suffered serious injuries as a result and sued numerous parties, including the City of Garden City.

The city argued it was not liable for the officer’s actions because at the time of the accident he was on detail to Chatham County. Since 1994, the city and county have jointly participated in a multi-jurisdictional drug task force. Per that agreement, the city “loaned” the officer in this case to the county. At the time of the accident, the officer was, in fact, traveling on orders from his task force supervisor.

The trial court nonetheless denied the city’s motion for summary judgment, holding a jury could still find the city was responsible for the officer’s conduct when the accident occurred. But a three-judge panel of the Georgia Court of Appeals unanimously reversed the trial court and granted summary judgment to the city.

The Georgia Supreme Court previously adopted a three-part test for determining whether the borrowed-servant exception applies. First, the second employer (or special master) must have “complete control and direction of the servant for the occasion”; second, the first employer “had no such control”; and finally, “the special master had the exclusive right to discharge the servant.”

Judge Stephen Louis A. Dillard, writing for the Court of Appeals, said that at the time of the accident it was the county, not the city, who controlled the officer’s employment. There was no dispute the county task force “had complete control and direction” over the officer’s work. The plaintiff’s argument therefore rested on the third test, arguing the city still retained “the right to terminate [the officer’s] employment or remove him from his assignment at any time.” This meant, the plaintiff said, the county did not have exclusive control.

Judge Dillard said that was not the case. Under the agreement between the city and the county, the officer served on the task force “at the pleasure of” the county. And while the officer remained assigned to the task force, the city agreed to “relinquish all command and directive authority” over the officer. Although the city retained the ultimate right to end the officer’s employment or pull him from the task force, only the county could “discharge [the officer] from the specific task he was performing for the [task force] at the time the injury occurred.” Judge Dillard said that was enough to justify dismissing the city’s lawsuit under the borrowed-servant exception.

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Is a bar owner liable for the death of a customer who drinks to excess and kills himself in a subsequent automobile accident? In Georgia, the answer is usually “no.” The Georgia Supreme Court recently elaborated on this principle in rejecting a wrongful death lawsuit brought by the wife of a man who died precisely in this manner.

Dion v. Y.S.G. Enterprises, Inc.

In September 2011, a man entered a sports bar at around 2:30 in the afternoon. He proceeded to drink for the next eight hours, leaving the bar just before 11 p.m. He was visibly intoxicated and a bar employee unsuccessfully attempted to take the man’s car keys. After leaving the bar, the man got into a single-car accident and died. His reported blood-alcohol level at the time of his death was .282, more than three times the legal limit.

The deceased man’s wife filed a wrongful death lawsuit against the sports bar’s owner. She argued the bar employees decision to continue serving her intoxicated husband was the proximate cause of his death. Netwon County Superior Court dismissed her complaint. In a decision issued on November 17, the Georgia Supreme Court unanimously affirmed the dismissal.

Presiding Justice P. Harris Hines, writing for the Supreme Court, said Georgia law does not recognize this type of wrongful death lawsuit. Under the common law, a person who purchases and consumes alcohol is presumed responsible for any resulting injuries, including death. The seller or furnisher of alcohol is not considered negligent.

The Georgia legislature codified and modified the common law rule through a what is known as the Dram Shop Act. This act reaffirms that an intoxicated person is liable for his own injuries. But it does make an exception: a bar that “willfully” serves a minor or a person who is in a “state of noticeable intoxication” may be liable if the server knows that person “will soon be driving a motor vehicle.”

As Justice Hines noted, the exception for serving minors did not apply in this case, as the deceased was of legal drinking age. And even though he was in a “state of noticeable intoxication,” the wife could still not pursue a wrongful death lawsuit on that basis alone. A wrongful death lawsuit presumes the existence of a tort claim by the deceased. Here, the deceased could not recover because his own act of drinking was still the proximate cause of his death.

The deceased’s wife nonetheless attempted to argue that the Dram Shop Act violated the Georgia Constitution. She said the legislature improperly restricted the jurisdiction of the courts, which violated the principle of “separation of powers” mandated in the Constitution. The Supreme Court disagreed. Justice Hines said the legislature “simply enacted legislation” that changed the common law, which does not implicate separation of powers. Furthermore, the legislature reaffirmed an existing common law rule regarding a person’s liability for consuming alcohol. Absent the Dram Shop Act, the wife would still lack a cause of action against the bar owner.

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A driver must exercise “ordinary care” when driving on Georgia roads. When an accident occurs, the courts must sort out each driver’s negligence, or lack thereof, in determining liability. In the case of a rear-end collision, for instance, neither the leading nor the following vehicle is automatically presumed to be at fault.

Dogan v. Buff

This principle recently came up in a Georgia Court of Appeals decision. The case arose from back-to-back accidents that occurred in 2009 on Interstate 75. Four vehicles were involved altogether. The plaintiff was driving a van in the third lane of the five-lane highway. The defendant was driving a tractor-trailer for his employer. There was a truck in front of the plaintiff and a fourth vehicle, a BMW, in the lane to the plaintiff’s left.

The defendant merged his tractor trailer into the third lane behind the plaintiff. At that point, the BMW driver lost control of his vehicle and collided with the truck. The plaintiff and defendant then merged their vehicles into the adjacent lane to avoid this collision. The plaintiff then stopped his van due to traffic in his new lane. The defendant, who was behind the plaintiff, then slammed his brakes, but still rear-ended the plaintiff’s van.

The plaintiff sued the defendant for negligence. The trial court granted the defendant’s motion for summary judgment. The Court of Appeals reversed, holding there were disputed issues regarding each party’s exercise of “ordinary care” that needed to be sorted out by a jury.

The appeals court noted the defendant “was less than 1.5 seconds behind” the plaintiff when they started braking. The defendant’s tractor trailer had a “brake-lag of approximately half a second.” The evidence presented to the trial court included an accident reconstruction report submitted by a defense expert who admitted the defendant “might have been following [the plaintiff] too closely,” and the accident may still have occurred had the two vehicles remained in their original lanes.

Furthermore, the defendant’s employer maintained safety guidelines that expressly required drivers to maintain a distance of at least one tractor-trailer length for every ten miles per hour speed on the highway. The defendant admitted he did not maintain that length. The employer also acknowledged the driver did not comply with its rules.

All of this established, at least as far as the Court of Appeals was concerned, there were sufficient facts to survive the defendant’s motion for summary judgment. While the Court of Appeals did not rule on the merits of the plaintiff’s case, it said the available evidence, viewed in the light most favorable to the plaintiff, created enough of an issue to warrant a jury trial. It will be up to the jury to decide if the defendant—and the plaintiff—failed to exercise ordinary care in the moments leading up to their accident.

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In March 2007, a security officer working at an Atlanta mall intervened to stop a robbery at a jewelry store. The officer shielded a mall patron’s body as one of the robbers opened fire. The officer was seriously injured and died several years later. Two other people were also injured by gunfire.

Unfortunately, the security officer’s heroism that day did not help his estate in court. The officer initially filed a premises liability lawsuit, accusing the mall’s owners of negligence in managing the property. A trial court granted these defendants’ motion for summary judgment, and in opinion issued on November 3rd of this year, a three-judge panel of the Georgia Court of Appeals affirmed.

Swope v. Greenbriar Mall Limited Partnership

The mall was not liable for the officer’s injuries under the “assumption of risk” doctrine. As the Court of Appeals explained, when a person “voluntarily and knowingly takes a risk involving imminent danger, he is precluded from recovery by reason of another’s negligence.” Here, the security officer “fully appreciated the danger involved” in confronting the robbers and shielding the mall patron from gunfire, and he therefore chose to assume all the risk involved.

The officer’s estate argued the Court of Appeals should apply what is known as the “rescue doctrine,” which creates an exception to the assumption of risk. The rescue doctrine holds that when a defendant’s negligence causes “imminent and urgent peril to life and property,” a person who attempts to rescue said life and property can attempt to recover damages, notwithstanding the assumption of risk. However, the rescue doctrine under Georgia law usually applies to a “volunteer” or “bystander.”

The security officer was neither, according to the Court of Appeals. To the contrary, he was a professional specifically hired to guard the mall. More to the point, he was only at the scene of the robbery because his job placed him in that location.

The estate argued the officer should have been considered a volunteer in this context because his job description was to “observe and report” the robbery, not to confront the robbers or otherwise intervene directly. The Court of Appeals disagreed. Although the court could not identify any previous Georgia case dealing with this exact type of situation, the panel cited an Arizona Court of Appeals decision holding a police officer could not invoke the rescue doctrine when he was injured attempting to remove an injured driver from the scene of a motor vehicle accident. There, the police officer claimed his job was simply to take charge of the scene, not to effect a rescue himself. But the Arizona court found that since the officer was only on the scene because of his employment, any injury he sustained, even if it occurred while going above-and-beyond the call of duty, was covered by the assumption of risk. The Georgia Court of Appeals said the same logic should apply to this case.

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An attorney’s opening and closing arguments during trial should not be confused for evidence. The attorney may attempt to persuade the jury on how to best interpret the evidence introduced at trial. But a jury is not supposed to substitute rhetoric for evidence.

Recently, the Georgia Court of Appeals addressed the issue of whether the content of an attorney’s closing statements could justify overturning the jury’s verdict. The underlying case was a personal injury lawsuit where the jury had to determine the relative fault of two drivers. The jury ruled for the defendant, prompting the plaintiff to argue defense counsel’s closing arguments improperly affected the decision.

Young v. Griffin

In June 2010, the plaintiff was driving his motorcycle when he approached a railroad crossing. According to his testimony at trial, as he “got right at the track,” the crossing lights began to flash, indicating an approaching train. At this point, the plaintiff said he observed a truck, driven by the defendant, blocking the lane on the other side of the crossing. The plaintiff then slammed on his brakes, but he was unable to avoid a collision with the defendant. The defendant testified he was approaching the railroad crossing from the other direction, but decided to execute a last-minute U-turn rather than stopping and waiting for the train to pass. As he completed the turn, he felt the plaintiff’s motorcycle rear-end him.

The plaintiff filed a personal injury lawsuit against the defendant. At trial, the defense introduced photographs of the skid marks produced by the plaintiff’s motorcycle as he applied his brakes just before the accident. During closing arguments, defense counsel said the skid mark evidence contradicted the plaintiff’s testimony regarding his actions just before the crash. Defense counsel asserted the plaintiff’s attorney previously argued there was a “reaction time” of 2.5 seconds between seeing a potential hazard and responding accordingly. At this point, plaintiff’s counsel objected, saying that was a mischaracterization of both his prior arguments and the evidence before the jury. The judge ultimately waived off the objection, saying the jury could decide for itself what the attorneys had previously said.

The jury ultimately held the plaintiff was 51 percent responsible for the accident, and entered judgment for the defendant. The plaintiff appealed, arguing the trial judge should have been more proactive in policing the defense counsel’s closing arguments. The Court of Appeals disagreed, and affirmed the judgment. The appeals court said there was no reason to believe the defense attorney’s statements regarding “reaction time” improperly influenced the verdict. There was sufficient evidence introduced at trial casting doubt on the plaintiff’s testimony and version of events. Furthermore, the trial judge expressly told the jury that the attorney’s opening and closing arguments were not evidence.

The Court of Appeals also dismissed various objections raised by the plaintiff to the trial judge’s instructions to the jury. These instructions consisted primarily of citations to Georgia traffic laws. The defendant argued the plaintiff was primarily responsible for the accident because he broke these laws. On appeal, the plaintiff said there was no evidence to support that argument. The jury, and the Court of Appeals, disagreed. Although in one case the trial judge instructed the jury with respect to inapplicable provision of the traffic code, overall there was no reversible error.

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What is the liability of a store owner for a potential tort committed by members of the public? The Georgia Court of Appeals recently addressed this question. The case involved a woman who claimed she was injured as the result of a collision with an unsupervised child.

Ingles Markets, Inc. v. Carroll

According to the plaintiff, she visited a grocery store in Villa Roca, Georgia, one afternoon in February 2012. As she walked down a store aisle, the plaintiff said a boy—about 11- or 12-years old—ran down the aisle, knocked into her, and caused her to fall. The plaintiff then filed a personal injury lawsuit against the child’s parents and the store.

The child’s parents defaulted in the litigation. The store argued it was not liable for the plaintiff’s injuries. The store moved for summary judgment, which the trial court denied.

But in a decision issued on October 24, the Georgia Court of Appeals reversed. A three-judge panel held there was no evidence the store had “actual or constructive knowledge” of the hazard created by the child running in the aisle. Indeed, the panel said the undisputed evidence proved otherwise.

In any premises liability case, the plaintiff must show the property owner was aware of the hazard. In a typical slip-and-fall case, for example, there must be evidence the store’s management had “superior knowledge of a condition” that exposes a customer to “unreasonable risk of harm.” Even if the store lacks actual knowledge of a hazard, it may still be liable if the dangerous condition lasted long enough that it should been discovered. (This is what is known as “constructive knowledge.”)

In the case of a hazard created by a third party—like a running child—rather than a spill, the Court of Appeals said the store only has a duty to act when “the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.” But a store does not generally have a duty to provide attendants or security guards to protect customers from unruly children.

In this case, the store presented evidence that its managers regularly inspect the property to ensure there are no hazards that pose a danger to customers. The plaintiff argued these inspection procedures were inadequate, as approximately 30 minutes elapsed between the child running into her and the manager’s last inspection. The Court of Appeals said this was insufficient to prove the store had “constructive knowledge” of the hazard posed by the child. Based on her own testimony, the child was likely running for just a few seconds before the accident. The only way the store could have knowledge would be to maintain a “constant patrol” of the aisles—exactly the sort of duty the Court of Appeals said it would not impose on any property owner.

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The Georgia Court of Appeals recently addressed the issue of a defendant’s potential liability in a traffic accident where an “intervening act” of a third party may have also contributed to the plaintiffs’ alleged injuries. Reversing a trial judge’s decision, the appeals court held a defendant who causes a traffic obstruction may still be considered negligent even if other parties may also be at fault.

Granger v. MST Transportation, LLC

This case began with a tractor that ran out of gas in DeKalb County. The driver stopped his tractor in the right-hand lane of a three-lane road. The driver then flashed his lights and deployed reflective warning triangles before leaving the vehicle and walking to a nearby gas station. The driver ended up making three trips to the gas station, as he could only carry five gallons of gasoline in his cannister, and the tractor failed to start after the first two refueling attempts.

Meanwhile, a vehicle containing two adults and their child traveled down the same road where the tractor was parked. As this vehicle switched lanes, it was rear-ended by another car. The impact forced the vehicle into the still-parked tractor. The driver did not have sufficient time to brake before hitting the tractor, and she later testified she did not see the flashing lights or the warning triangles.

All three passengers were injured in the collision. They sued the driver and the owner of the tractor for negligence. The defendants argued they could not be held liable, since it was the “intervening act” of a third party—the vehicle that rear-ended the plaintiff’s car and forced it into the tractor’s lane—that led to the accident. A DeKalb County judge agreed, holding as a matter of law the plaintiffs could not establish “proximate causation” between the tractor driver abandoning his vehicle in the right lane and the plaintiffs’ injuries.

The Court of Appeals disagreed with the trial court. Presiding Judge Gary Blaylock Andrews, writing for a unanimous three-judge panel, said that, based on the facts alleged, “it was not unforeseeable that as a matter of law that another motorist on the road, for reasons beyond his or her control…might be placed in a position where it was all but impossible to avoid striking” the defendants’ tractor. Even if there was an intervening act by a third party—in this case, the initial rear-end collision–the defendants could still be liable for leaving their tractor “standing in an active lane of traffic.”

Judge Andrews explained that this is not a case where the defendants could not possibly foresee the consequences of their actions. The intervening act defense may aid a defendant in those situations. But that is not was alleged here. The defendants’ tractor was an obstruction in the road. The fact that another driver’s negligence may have forced the plaintiffs’ vehicle into that obstruction does not automatically relieve the defendants of liability for causing the obstruction in the first place.

The Court of Appeals did not address the merits of the plaintiffs’ case. In reversing the trial court’s summary judgment order, the appeals court only found the plaintiffs were entitled to present their case to the jury. The question for trial is whether or not the defendants committed “ordinary negligence” in allowing the tractor to run out of gas, thereby causing a traffic obstruction that was a cause—not necessarily the only cause—of the plaintiffs’ injuries.

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The Georgia Supreme Court recently dismissed a personal injury lawsuit brought by a woman who fell into a pothole in a parking lot. The woman sued the property owner for maintaining unsafe conditions in the parking lot. In this case, the property owner was Dalton State College, part of the University System of Georgia. As the named defendant, the Board of Regents of the University System of Georgia is immune from civil lawsuits unless certain conditions specified by Georgia law are met. Unfortunately, the Supreme Court found the plaintiff failed to meet one of those technical conditions.

Board of Regents v. Myers

There was no question the woman suffered serious injuries. After falling in the pothole at Dalton State’s parking lot, she required emergency treatment, extended orthopedic care, and several months of physical therapy. While still receiving treatment, the woman notified the Board of Regents of her intention to sue. Georgia law requires such notice be given in order to effect a waiver of the Board’s sovereign immunity.

The notice itself must contain a description of the time, place, and circumstances of the accident giving rise to the personal injury claim. The notice must also specify “the nature and amount of the loss suffered” by the victim. But in her notice, the woman only said her “loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.”

The trial court said this was insufficient. The law requires a specific claim for damages. The trial court said it could not ignore this requirement, and deemed the plaintiff’s failure to offer a specific amount grounds for dismissal.

The Georgia Court of Appeals reversed the trial court. In a 2013 decision, that court said Georgia law “does not require a partial statement or ‘snapshot’ of the loss; instead it requires a statement of the ‘amount of the loss claimed.’” Because she was still receiving treatment at the time she was required to give notice, the Court of Appeals said it was unreasonable to require her to quantify her still-unknown losses.

But the Supreme Court disagreed. By a vote of 6-1, the justices said the plaintiff could have presented a specific claim for the medical expenses she incurred up to the point when the law required her to give notice. The plaintiff could have given notice with respect to this partial amount and amended her claim later to reflect additional expenses, the Supreme Court said, but she could not simply wait until she had more complete information before complying with the law’s notice requirement. Accordingly, the Supreme Court reinstated the trial court’s decision to dismiss the plaintiff’s lawsuit, saying she was barred by sovereign immunity.

Justice Robert Benham was the only dissenting vote. He agreed with the Court of Appeals that the plaintiff gave adequate notice under the circumstances, and one should not read the law as requiring an “incomplete snapshot” of a victim’s still-accumulating expenses or losses. In all other respects, Justice Benham added, the plaintiff fully complied with the notice requirements.