Case Study: James Borkowski Resolves a Multi-Defendant, Multi-Carrier Coverage Dispute in a High-Exposure Construction Injury Case

Case Study | 2026

Introduction

This complex labor law matter arose from a workplace accident at a supermarket loading dock. A male plaintiff in his late forties was employed by a company that services loading docks. While performing repairs, he was struck in the head and neck when a metal flap collapsed, resulting in severe traumatic brain injury and multiple disc herniations requiring surgery. The defendants included the supermarket, supermarket management company, and two servicing companies whose vendors included the plaintiff's employer. Summary judgment motions were pending, with Labor Law § 240 strict liability implications hanging over the entire case.

The Problem: Coverage Disputes Before Any Dollar Could Be Discussed

The case presented two interlocking obstacles that had to be resolved before any settlement figure could be reached.

• Coverage and policy exhaustion. Each defendant carried both primary and multiple excess policies. The carriers disagreed over which policies triggered first, a horizontal versus vertical exhaustion dispute that had to be resolved before anyone could determine each defendant's settlement contribution. 
• Indemnification cross-claims. The supermarket asserted that the other defendants were contractually obligated to indemnify it. Each defendant pointed to the others, creating a circular dynamic that paralyzed any forward movement.

On the merits, the defense argued the work was routine maintenance excluded from § 240's strict liability protections. The plaintiff argued otherwise. A loss on that motion alone could swing the case value by millions, and a full trial would involve multiple medical experts, an estimated $500,000 to $750,000 in attorney fees, and appellate costs of roughly $50,000 per defendant.

The Approach: Sequencing the Process

A joint mediation at the outset would have been futile, since, given the insurance coverage disputes, the defendants would not be able to negotiate settlement offers.  Plaintiff would be sitting impatiently for hours, frustrated by the process. A traditional joint mediation would fail before it started. The resolution process involved:

• Defense-only sessions first. Before any joint session with the plaintiff, Jim held two five-hour defense-only sessions to work through the coverage tower hierarchy and indemnification obligations among the defendants and their carriers. These disputes were completely blocking resolution and had to be addressed independently. Each defendant submitted detailed mediation briefs, enabling Jim to understand the issues and be fully prepared prior to the mediation.
• Confidential breakouts to establish trust. Jim's approach stresses trust in the mediator and avoiding the “mediation ping pong” of multiple small offers.  Jim met separately with each party to understand, in confidence, their actual goals, rather than just their stated positions. Within an atmosphere of trust, each defendant and their claims representative advocated for their positions with a level of candor that was both unexpected and constructive.
• Realistic risk framing. In addition to discussing the merits of their defenses, Jim walked each defendant's counsel through the full cost trajectory: a potential finding of Labor Law § 240 strict liability by the Court; a weeks-long trial, with lay witnesses, expert witnesses, and doctors testifying; and major financial exposure. The financial case for settlement was clear.

The Result: A $5.51 Million Resolution

After approximately 30 hours of mediation, including two defense-only sessions and two joint sessions, the case settled for $5.51 million. Both sides avoided a high-stakes trial with uncapped exposure and years of additional litigation costs. For the plaintiff, the settlement delivered certain and substantial compensation for severe, permanent injuries.

Key achievements:

• Resolved threshold coverage and indemnification disputes that would have blocked any joint settlement.
• Avoided strict liability exposure under Labor Law § 240 and the cost of a multi-expert trial.
• Delivered significant, certain recovery for a plaintiff with life-altering injuries.

Closing Summary

This case illustrates Jim Borkowski's approach to high-complexity, multi-party disputes: identify the threshold obstacle, sequence the process around it, and build the trust required to move parties toward resolution. When four defendants and multiple insurance carriers cannot agree on a foundation, no settlement number can be reached until a skilled mediator resolves the underlying problem first.

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About James Borkowski

James Borkowski's career spans more than 35 years as a trial attorney at the trial and appellate levels in both the state and federal court systems. He has successfully represented insurance carriers, corporations, and individuals in personal injury, Labor Law 240 construction cases, general liability, premises liability, property damage, automobile and commercial litigation (both plaintiff and defendant). In 2023, for the fourth year in a row, Mr. Borkowski was voted a Top 10 Neutral in the New York Law Journal “Best Of” survey.

About NAM

NAM is a premier provider of Alternative Dispute Resolution (ADR) services, delivering efficiency and results to clients throughout the U.S. and globally. Through its market-leading technology and secure virtual and hybrid forums, NAM offers a streamlined alternative to traditional litigation. With an exceptional roster of neutrals and concierge-level case administration, NAM is the ADR partner of choice for over 10,000 commercial entities and half the Fortune 100.