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Florida #2 In Country For Pedestrian Fatalaties

Pedestrian deaths are at the highest numbers nationwide in the last three decades. Florida has risen to the second highest number of pedestrian fatalities in the country. Meanwhile, fatalities in auto accidents have actually gone down.
What is causing this alarming increase in pedestrian fatalities and why in particular is Florida so high? One theory is distracted walking; more people are walking while on their cell phones and therefore not focused on the road and traffic. Another theory is that rising populations with more concentrated urban populations and higher tourism create more scenarios in which pedestrians and automobiles are having deadly encounters. This may explain why Florida and California are the top two in pedestrian deaths as they are also two of the top states for tourism. Another factor is walking under the influence of drugs or alcohol. Ironically, as drunk driving is going down due to more stringent law enforcement efforts, drunk walking is going up. Pedestrians, like drivers, need to be alert and aware of their surroundings and not distracted in order to avoid being involved in an accident. Both drivers and pedestrians need to be familiar with and obey traffic rules and respect that roads belong to cars, motorcycles, bicyclists and pedestrians and that everyone has a duty to look out for each other.
Municipalities also need to do their part by having clear and visible warning signs advising drivers to yield to pedestrians, or better yet, directing drivers to stop for pedestrians in areas with high volume pedestrian traffic. There needs to be sufficient crosswalks to deter pedestrians from crossing elsewhere and street lights directing pedestrian traffic. Of course, there needs to be enforcement of traffic rules for both cars and pedestrians.
In Florida and nationwide we need to make pedestrian safety a priority, and with a common sense approach we can reverse this disturbing course of increased pedestrian fatalities and the trend of having the highest death rates in thirty years.
If you or a loved one is involved in a pedestrian accident you should immediately consult with a Board Certified Civil Trial Lawyer who specializes in accident cases.

Florida’s Accident Report Privilege

In Florida there are two types of privileges; those that are long standing and set out in the Florida Evidence Code and those that are simply statutory privileges, i.e. created by statute.
Accident Report Privilege is the latter and falls under Fla. Stat. 316.066(7). The purpose behind statutory privileges are similar to the ones delineated in the evidence code in that they exist to allow people to speak freely by not allowing their statements to be used against them in subsequent litigation.
When law enforcement comes to the scene of an accident, they have a duty to interview the persons involved and prepare an accident report. The accident report privilege helps to ensure that the investigating officer will get complete and truthful information from the persons involved in the accident so an accurate accident report is generated. If the statements could be used in subsequent litigation then the parties would not be inclined to cooperate with law enforcement and law enforcement would be unable to prepare an accurate accident report. Having accurate accident reports serves a public interest and that public interest is more important to society than an individual’s desire to use those statements in subsequent litigation.
Accident scenes are typically not conducive to confidential communication. Thankfully, the communication does not have to be confidential in order to fall under the accident report privilege. Should that communication to law enforcement be overheard by another party such as a witness, that communication is still protected and cannot be used in subsequent litigation.
Like all privileges, there are exceptions to the accident report privilege. Identity of the driver is an exception. In addition, an excited utterance or spontaneous statement which is not in response to a question by law enforcement does not fall under the privilege. Statements made by witnesses who are not involved in the accident do not fall under the privilege. The privilege only applies to the driver, owner, occupants and those directly involved in the accident that have a statutory duty to speak to law enforcement regarding the accident.
In addition, like all privileges the privilege can be waived by failing to object to use of privileged communications at trial. Where this privilege appears different than those delineated in the evidence code such as attorney client privilege is that recent case law allows for there to be inquiry into those privileged communications at deposition. In a deposition, if a party is asked to divulge any communication between the attorney and client, the attorney would immediately object and instruct the witness not to answer that question and the court would uphold that objection. Suppose instead the party is asked to divulge what they told the investigating officer at an accident scene, the attorney would still voice an objection as to the admissibility but could not get away with instructing the client not to answer that question. Answering the question does not waive the privilege and that information will still not be admissible at trial; however, that information may be used to discover admissible evidence that can be used at trial. One could argue a more accurate name for this privilege would be the accident report inadmissibility rule.
In light of the complexities of the accident report privilege, you should always consult a Board Certified Civil Trial Attorney who specializes in accident cases if you are involved in an automobile accident.

The Confusing Maze of Accidents and Insurance Coverage

You have been involved in an auto accident and as a result of that accident your car is badly damaged and you are injured. Who pays to fix your car and how do you get your medical bills paid?
Seems like the answer should be easy. If the accident was your fault then your insurance pays for everything, and if it was the other driver’s fault then their insurance pays for everything; right?
Actually, it is not that simple. In every accident regardless of who is at fault the first layer of insurance coverage for your medical bills comes from your own insurance company under Personal Injury Protection (PIP), also known as no-fault insurance. In the State of Florida, everyone must carry at least $10,000.00 in PIP coverage. You can also choose to have additional coverage called Medical Payments or Medpay which is also no- fault insurance and can cover your medical bills regardless of who is at fault for the accident.
PIP insurance can also reimburse an insured for a percentage of lost wages and mileage to and from your medical providers while Medpay only pays for medical bills.
Now you might be thinking, ok I get it, my PIP will pay my medical bills and lost wages regardless of whether I am at fault. Again, not that easy. PIP pays 80% of your medical bills that are reasonable, related and necessary. In other words, PIP does not pay 100% of your medical bills and can reject part or all of the medical bills that do not fit their criteria. Your insurance company can also cut off your PIP coverage by sending you to a doctor who says that current or future treatment is not reasonable, related or necessary. To muddy the waters even more the law regarding PIP benefits was revised January 1, 2013, requiring an injured party to get medical treatment within 14 days from the date of the accident which must qualify as an emergency medical condition (EMC). If you do not meet the EMC qualification then your PIP coverage will go from Ten Thousand ($10,000.00) dollars in coverage to only Two Thousand Five Hundred ($2,500.00) in coverage.
Assuming you meet all of the PIP criteria and you get the full $10,000.00 in PIP coverage, what happens after that coverage has been exhausted? What if you still need more medical treatment? Who is going to pay those bills? Hopefully you have a health insurance policy that can start paying for any medical bills once your PIP has been exhausted. If your health insurance does pay for any medical treatment and you later recover from the other driver, your health insurance will have a right to get reimbursed for what they paid. This is called a right of subrogation which entitles the health provider to assert a lien against any recovery.
What if you do not have any health insurance, then what happens? There are a few options. You can pay the bills yourself with the hope of recovering the money back when you resolve your case against the other driver, assuming they are at fault. Another option is that you can ask the provider to wait for payment until the case has been resolved against the other driver, again assuming they are at fault. In that case the provider will usually require you to sign a “Letter of Protection” (LOP) which is a contract that ensures that they will get paid out of any recovery/settlement you get.
Can the other driver’s insurance company pay for your medical bills once your PIP has been exhausted? Typically, the other insurance company will not directly pay any medical bills and instead they will offer a settlement that they feel adequately covers all of your damages, and from that settlement your medical providers will be paid for outstanding medical bills and your health insurance company will be reimbursed for any bills they paid.
Will the other driver’s insurance, assuming that driver was at fault for the accident, automatically cover all of the outstanding bills and health insurance liens?
Again, unfortunately it is not that easy. The insurance company will only offer settlement funds for damages that they believe are related, reasonable and necessary. They will only pay up to their insured’s policy coverage. In the State of Florida there is no legal requirement to have Bodily Injury (BI) insurance which is the coverage that pays for damages related to an accident in which you are at fault. So what happens if the at-fault driver does not have any BI coverage or they only have a very small policy that is not sufficient to cover your damages? Hopefully, you have what is called UM/UIM coverage which stands for Uninsured or Underinsured coverage. If you do have that coverage then that will be the next level of insurance to which you can look to cover your damages. Keep in mind that unlike your PIP insurance, in the case of UM or UIM, you must prove that the other driver was at fault and that they do not have any or a sufficient amount of bodily injury insurance coverage to fully compensate you for your damages.
Who pays for the damage to your car? If the other driver was at fault then their insurance company will pay for any damage to your car related to the accident up to their insured’s policy, which under Florida law must be at least $10,000.00. This insurance is called Property Damage (PD). Other insurance that can pay for the damage to your car is on your own policy and is called Collision insurance. Not everyone has Collision on their insurance policy and Collision insurance typically has a $500.00 deductible that you have to pay. Under both of these coverages you will be limited to the policy limits. The insurer can also choose to total-out the vehicle rather than having it fixed, if repairing the vehicle will cost more than totaling it. In a total-loss the insurance company will pay what it deems to be the current market value of your vehicle which is not the same as the replacement cost for the vehicle.
Guaranteed Asset Protection (GAP) is an optional coverage you can purchase when buying a vehicle that will pay the difference between the actual cash value of the vehicle and the balance still owed to financing. Keep in mind, the second you drive the vehicle off the lot following the purchase, the value of the vehicle drops substantially, so GAP protection is always recommended.
As you can see, this blogpost was appropriately titled. Insurance and auto accidents are complicated, which is why if you are involved in an accident with injury you should always consult a Board Certified Civil Trial Lawyer who specializes in personal injury cases. A good attorney will know all the hoops that have to be jumped through to ensure that any and all insurance coverage is available to you. In addition, your attorney will make sure that all of your legal rights are protected and that you have all the information you need to make informed decisions regarding your case. A good attorney will always put their clients’ interest first and will be someone to whom you will be comfortable referring your family and friends.

A few words about client contact

I like to read articles in legal journals about trends in law firm practice. A fashionable topic is the way in which lawyers have contact with clients. Typically this issue is cast in the light of new forms of technology. You hear about how certain clients (typically younger ones) are not interested in the old school manner of telephone conferences and in-office meetings. On the other hand, I have had clients (or the parents of clients) who require a more personal touch and want to look their attorney in the eye when discussing their case. Simply put, this is not an issue for our firm. We have made a commitment to being a client-centered law firm that will directly meet the needs of each and every client. That requires flexibility and nimbleness. This is one of the advantages of being a smaller firm. Some of my clients require extra hand holding and need to be kept up to date on a frequent basis. Done. Others prefer to put the case in my hands and only hear from me at critical junctures. Also fine. The practice of law is a profession, but it is also a service industry. The needs of our clients must be first and foremost. As these needs vary from client to client, we as attorneys must be willing and able to meet the individual needs of each client. At Zimmerman and Zimmerman we commit to providing you the type and amount of contact that you desire. The matters in which we represent you are often the most difficult and stressful events of your life. Being there for you when and how you need us is the least we can do for you.

Selling Alcohol to Minors in Sarasota


Fifteen convenience store clerks were cited for selling alcohol to minors in a crackdown by the Sarasota Sheriff’s Office.   All of the citations took place from June 30 to July 1, 2014.  The charges all stemmed from undercover activities targeting gas stations in Sarasota, Nokomis and Osprey.  These are criminal citations punishable by jail time.  The criminal justice system can be a complex place and should not be navigated alone.  A qualified criminal defense attorney is necessary to ensure that your rights are not violated.  In cases like these where the police are using undercover sting operations there is a real risk that the person charged was the victim of police entrapment.  This occurs when the police create a crime where otherwise one would not have been committed.  The question in these circumstances is whether the undercover agent encouraged the charged individual to commit the offense when they otherwise would not have committed the offense.  In order to protect your rights and make certain that you are treated fairly by the justice system you can contact Board Certified Criminal Trial Lawyer Mark Zimmerman.    

Injured in a Motorcycle Accident?


With high gas prices, motorcycles seem like a very attractive alternative to traditional vehicles.  Unfortunately, as traffic in general continues to increase, so do motorcycle accidents.  Unlike a car that is encased in steel, motorcycles offer no protection in an accident.  As a result, approximately 80-90,000 motorcyclists are injured and approximately 4,500-5,000 are killed in accidents each year. 

What can a motorcyclist do to protect themself?

  1.  Before ever getting on a busy road or highway make sure that you have adequate hours of driving and experience on a motorcycle.  Many accidents are due to inexperience.
  2. Wear a DOT approved helmet!  Statistics show that wearing a helmet will make you almost 40 percent less likely to suffer a fatal head injury.  Ironically, despite these statistics many states including Florida do not require that motorcyclists wear helmets.  As a result, motorcyclists cannot get PIP (personal injury protection) insurance in the State of Florida.  So you better have a good health insurance plan!
  3. Wear protective and bright clothing.  Wearing long sleeves and pants can go a long way in preventing serious road rash.  In addition, bright clothing will aid other drivers in seeing you.
  4. Keep a safe distance from other vehicles.
  5. Never drink alcohol or take narcotics before you ride.  You need to have complete control of all of your senses when riding a motorcycle.
  6. Ride defensively.  Be on the constant lookout for threats from other vehicles.  It does not matter if you are in the right and they are not; if you get into a collision with a car you are going to be the one who suffers potentially life threatening injuries or death!
  7. Avoid riding in bad weather conditions.  The threat that bad weather conditions presents to drivers of cars is nothing compared to the threat it presents when you are riding a motorcycle.If you are in a motorcycle accident, get medical attention right away.  Even if you think that you do not have serious injuries you should get checked out.  Get stamp dated photographs of the accident scene, damage to your motorcycle, other involved vehicles and the injuries to you, as soon as possible.


    Do not talk to anyone, other than medical providers, until you have spoken to a board certified civil trial lawyer who handles motorcycle accident cases as part of their practice.  In addition, do not post comments or photos on social media such as Facebook and Twitter.

VOP (Violation Of Probation) in Sarasota, Bradenton or Venice

VOP’s are one of the most common charges for which people are incarcerated.  VOP’s differ from typical criminal charges because you will not be able to have your case heard by a jury, and the amount of evidence needed by the government to prove the charge is significantly less.  This makes the need for professional legal help that works directly for you very critical.  Properly resolving your VOP in Sarasota, Bradenton or Venice requires the work of an experienced attorney that has extensive experience working with the local judges, prosecutors and probation officers.  VOP’s can be very different from each other, depending on the nature of the violation.  A “new law violation”  requires the prosecutor to prove the new charge in order to prove that you have violated your probation.  A “technical violation” merely requires the prosecutor to prove that technicality.  These can include matters as simple as missing your monthly appointment with your probation  and more complicated matters such as positive drug tests.  Attorney Mark Zimmerman is a Board Certified Criminal Trial Lawyer.  He is rated AV, the highest possible rating, by Martindale-Hubbell.  He is rated 10 out of 10, superb, by Avvo.  He has been designated a Super Lawyer.  Mark Zimmerman has vast experience handling violations of probation in Sarasota, Bradenton and Venice.  Give him a call at 941-364-8503 for a free consultation regarding your VOP.

Injured in a Trucking Accident?


Trucking accidents are increasing in Bradenton, Sarasota and Venice, Florida and across the United States.  This is due partially to increased overall traffic on the highways.  Another potential factor is decreased training and less stringent requirements for truck drivers as companies are finding a shortage of available truck drivers.  In addition, due to the lack of truck drivers many of them are on the road for longer hours. 

Trucking accidents make up less than 5% of vehicle accidents involving personal injury.  However, trucking accidents account for approximately 10% of traffic fatalities. This is because there is no such thing as a minor trucking accident.  Trucks are significantly heavier and larger then automobiles, so when a truck hits your car it is not going to be a fender bender. 

Trucking accidents are mostly caused by driver error. The driver was not attentive, was overtired or was under the influence.  Equipment failure such as defective or worn tires and brakes are another cause of these accidents.   Bad weather and poor visibility play significant roles in trucking accidents as well as improper loading.  Lack of training and proper monitoring of drivers are also significant factors.

Due to the great danger that trucks present to automobiles it is best to try to avoid driving too closely behind or next to a truck.  If you are involved in an accident with a truck you should immediately seek medical attention and then call a board certified civil trial lawyer who has experience handling personal injury cases caused by trucking accidents.

What you should not do is talk to anyone before talking to a lawyer.  Trucking companies and their insurers’ are very aggressive and have even been known to send investigators into the emergency room within hours of your accident to attempt to get a statement.  The fact that you are in pain or under the influence of medication will not deter them.  In addition, you should not post pictures or talk about your accident or injuries on social media such as Facebook or Twitter. 

What you should do is accurately report all of your injuries and the cause of your injuries to your medical providers.  You should provide your medical providers with all of your auto and health insurance information. In addition, you should get someone to take pictures with a date stamp of the damage to your automobile, the accident scene and your injuries as soon as possible.


Warning to Parents: Be Aware Of Yik Yak

Parents, have you heard of Yik Yak?  If not, you’d better get educated, and fast.  Yik Yak is a new a very popular social media app.  Think of Twitter with anonymity and you’ve got the basic idea.  The other major catch is that Yik Yak is limited to a specific radius, as little as 1.5 miles and, some say, as much as 10 miles.

Why is Yik Yak dangerous?  Because it is the new app of choice for cyber bullies.  It has already shut down schools due to misuse.  Students are hiding behind Yik Yak’s anonymity to make bomb threats, sexually harass others and spread false rumors.  There is no limit to the potential havoc that could ensue.

What can be done?  First, educate yourself.  Go online and read more about this and then sit down and discuss it with your children.  As always, knowledge is power.  Next, encourage your children not to engage in the mayhem.  In my practice I have often seen victims of bullying become accused of bullying when they retaliate.

Where will it end?  The company behind Yik Yak has already agreed to restrict access to a school district in Connecticut.  Encourage the administrators at your school district to do the same.  This won’t stop kids from using the app, but it will stop them from using it at school.

If your child is the victim of cyber bullying or has been accused of this, do not hesitate to contact a qualified attorney.  Whether it is a matter in the juvenile courts or a school disciplinary matter, attorney Mark Zimmerman can help you navigate these complex systems.

12 Men Arrested In Online Sex Sting: Operation Intercept

The Sarasota County Sheriff’s Office has announced arrests in Operation Intercept.  This is the Sheriff’s third online sex sting.  The first thing someone arrested in this sting should do is to consult with and retain a qualified criminal defense lawyer.  What makes a lawyer qualified to handle such a case?  Attorney Mark Zimmerman is a Florida Bar Board Certified Criminal Trial Lawyer.  Only 5-6% of all lawyers are board certified in any area of law.  The number certified in criminal trial law is much smaller.  Make sure to ask whether the lawyer with whom you consult has handled such cases in the past.   Mark Zimmerman has handled online sex sting cases through trial.  If you are reading this on behalf of a loved one presently incarcerated in jail, make sure that they do not discuss their case with anyone other than a lawyer.  Phone calls from the jail are recorded, and prosecutors routinely listen to them to see if people might make incriminating statements.  Also, do not speak with other inmates about your case.  Jails are filled with snitches that will try to use your statements to help them gain an advantage in their own case.  Defense of these cases involve collection of evidence already in existence with the government, the strategic taking of depositions, an analysis of any and all possible defenses, the filing of motions in an attempt to suppress evidence or dismiss the charges and if necessary the trial of the case.  In the event that overwhelming evidence exists, it is important that your attorney be able to effectively negotiate the best possible outcome for you.

Call Mark Zimmerman at 941-364-8503 to schedule an immediate and free consultation regarding your case.