By Tom Kirvan
Legal News

A long-haul truck driver for the better part of 25 years, Dave Deming grew accustomed to making a grueling round trip between Michigan and North Carolina each week, transporting high-in-demand farm commodities such as chicken feed and cottonseed.

“I got to know the West Virginia Turnpike very well,” he said of the 88-mile stretch of tollway that has an elevation change of nearly 3,000 feet. “Probably too well, in fact.”

At 6 feet, 7 inches tall, the 265-pound Deming was about to make the 14-hour return trip home from North Carolina with a load of cottonseed when tragedy struck on December 8, 2022, altering his life in ways hard to imagine.

The day also set in motion a legal battle under Michigan’s No-Fault Act that underwent sweeping changes in 2020, revisions that under the pretext of reducing the cost of insurance premiums also has caused various unintended consequences that are impacting people like Deming and his wife Kelly.

The Demings, who reside on a rolling 32-acre farm in the rural community of Rodney near Big Rapids, never expected to be embroiled in a potentially precedent-setting case, where various constitutional issues revolving around equal protection and due process claims are being contested.

“Who wants to ever be involved in a court case,” Dave Deming asked. “Not me, that is for sure.”

And yet, there he is as the named plaintiff in an April 16 suit filed in Oakland County Circuit Court against Progressive Corp. and several of its insurance affiliates, alleging that the defendant “improperly delayed and denied the proper payment of insurance benefits” after Deming suffered a series of severe injuries from a fall off his semi-truck while it was being loaded with cottonseed.

Deming is being represented by attorneys Nick Andrews and Meagan O’Donnell of the Bloomfield Hills law firm of Liss & Andrews, which deals exclusively with No-Fault Act cases involving the catastrophically injured.

Sadly, Deming has been among the ranks of those dealing with long-term catastrophic injuries since that fateful day in late 2022 when his life was literally turned upside down.

“It was a typical day for me, nothing out of the ordinary,” Deming said in describing the events surrounding his final moments as a truck driver. “I was parked getting a full load of cottonseed, constantly checking the weight gauges to make sure the load was properly balanced. I was climbing up the front side of the trailer on a ladder when I lost my balance and fell approximately 12 feet, hitting my head on the pavement. I was knocked unconscious by the fall but came to briefly to see that I was lying close to the tires. The next thing I knew, I woke up in the hospital with all sorts of injuries.”

The injuries included brain hemorrhages, multiple vertebra and rib fractures, a bruised lung, and assorted other problems resulting from the severe brain damage and severe spinal cord harm he suffered.
Deming spent five weeks in a North Carolina hospital being treated for his injuries, while also recovering from spinal fusion surgery with rod placement for the L1 vertebra fracture. He then was transported by small plane to a Mary Free Bed Rehabilitation facility in Saginaw for further acute rehab care, a stay that lasted another three weeks.

The plane trip back to Deming’s home state was arranged by the Michigan chapter of Pilots for Christ, a nonprofit Christian organization that provides mercy flights for those in special need.

“They were such a blessing for us, to get Dave back closer to home,” said Kelly Deming, his wife for the past six years. “It would have been incredibly difficult to have gotten him home any other way in terms of the time involved and his overall safety and comfort.”

In the aftermath of the accident, Deming requires skilled attendant care 24 hours a day, seven days a week, according to his attorneys. The skilled care involves tending to basic personal hygiene, dressing, and grooming needs, along with bowel protocol, bladder catheterizations, and medication administration and management.

Since Deming returned home, his care responsibilities have been shouldered almost entirely by his wife, who worked as Certified Nursing Assistant for much of her career before she suddenly became consumed by the enormity of the job 24/7 when her husband was injured.

“Because of my medical background, I came into this knowledgeable about the scope of the care Dave would need,” Kelly Deming said. “But, obviously, no one can prepare you for the possibility of doing it all day, every day.”

Although she is providing round-the-clock care for her husband, Kelly is paid for just 8 hours a day or 56 hours per week under terms of the revised Michigan No-Fault Act, which went into effect in 2020.

Under provisions of the revised law, attendant care provided by a “family member” is limited to 56 hours per week, leaving the remaining time – 112 hours – to someone from outside the household.

“This is just one of several shortcomings in the revised law and was a predictable outcome of legislation enacted in haste,” said attorney Nick Andrews. “The result here is that people like the Demings – along with many others in similar situations – are getting the short end of the stick.”

Hence, the reason that Liss & Andrews – on behalf of the Demings – is challenging the state’s 56-hour per week caregiver limitation for family member care of the injured.

“In effect, the state has created a double standard in terms of care, limiting family members to a certain number of hours per week, while Certified Nursing Assistants working for commercial home health agencies are not restricted by this same limit that families providing the same care are bound by,” said Andrews.

“Making it even more troublesome is the fact people who live in rural communities like the Demings have very limited options in finding quality attendant care,” Andrews added. “The difficulties are virtually insurmountable as the pool of qualified care-givers in those areas is so small.”

To make matters worse, Andrews indicated, the cost of providing care by a commercial agency can range from 31 percent to as much as 154 percent higher than that furnished by a family member, thereby defeating much of the underlying purpose of lowering insurance premiums.

In the complaint, Andrews and O’Donnell argued that “there is no rational relationship between the proffered governmental interest in reducing rates and forcing injured persons to use commercial attendant care instead of family attendant care providers who typically provide better care at a more economical cost.”

They point to an American Medical Association study that found that “Patient- and family-centered care is changing the way hospitals provide patient care, increasing staff satisfaction, decreasing costs, and improving patient outcomes.”

Said Andrews: “Aside from being discriminatory, which violates the Equal Protection clause in the Constitution, there is no real economic basis for this revision to the law. The costs will be more – and in many respects much more. The injured also will be deprived of the kind of loving and considerate care that only a family member can provide. To prevent round-the-clock family care makes no sense at all.”

The Demings, as expected, wholeheartedly agree, promising to hold firm in their resolve to right what they believe is a serious legal wrong.

“I’m just grateful that I have someone like Kelly who is so kind, helpful, and loving,” said Dave, who alternates between and a wheelchair and walker to get around. “She has been a godsend and I thank God every day for having her in my life. We’re obviously in this together, and we intend to remain strong in seeing this case to a successful end.”

Added Kelly: “Our faith keeps us connected, and we feel a responsibility to help other families who are similarly affected by this law. We don’t dwell on our situation or say ‘poor me.’ We are just grateful that we have each other and that we are in a position to do some good with this case.”