Members of the Colorado Supreme Court struggled on Tuesday to balance the need for one defendant to shield itself against a plaintiff’s claim that its employee sexually assaulted her child, and the fact that the employee legally admitted the allegations against him by failing to participate in nearly all of the civil case.

A plaintiff identified as J.B. filed suit against Metro Taxi on behalf of her child, E.B., who is a disabled adult. J.B. alleged taxi driver Jesus Ortiz sexually assaulted E.B. while driving her to her day program. Prosecutors criminally charged Ortiz and a jury acquitted him.

Ortiz did not respond to the civil lawsuit, where he was also a defendant, and the clerk entered a default against him. Legally, the default established Ortiz’s liability.

However, at the trial against Metro Taxi, the judge allowed Ortiz to testify. He maintained he did not assault E.B. Although jurors were told the default meant Ortiz had admitted to the allegations, the jury found in Metro Taxi’s favor, that Ortiz did not assault E.B., and that E.B. did not suffer damages. A judge then overturned the default judgment and, later, the case resolved in Ortiz’s favor.

“This case has caused me to think about what is fair. Because there’s fairness to your client,” Chief Justice Monica M. Márquez told Metro Taxi’s attorney during oral arguments. “There’s fairness to Mr. Ortiz. There’s fairness to the plaintiff. I understand that for your client’s purposes, the fact that the key witness here had defaulted ought not to somehow prejudice your ability to put on your defense.”

Yet, Ortiz “was allowed to essentially capitalize on that testimony and the jury verdict that resulted from it,” she continued.

“How is it that Mr. Ortiz can get the benefit of this verdict when the jury’s told repeatedly that this was not a trial about him?” added Justice Richard L. Gabriel.

Previously, the Court of Appeals addressed whether it was proper for Ortiz to testify at the trial against Metro Taxi, whether a judge could overturn the default judgment following the verdict, and whether Ortiz could ultimately prevail despite his default.

By 2-1, a three-judge appellate panel upheld the outcome.

Judge Lino S. Lipinsky de Orlov noted that Metro Taxi “followed the rules” and deserved to present evidence from a key witness — Ortiz.

“J.B. had a full opportunity to litigate the most fundamental fact underlying J.B.’s claim against Ortiz — whether Ortiz sexually assaulted E.B.” wrote Lipinsky for himself and Judge Rebecca R. Freyre. “After hearing J.B.’s evidence, the jury rejected the evidence supporting her assertion that E.B. was sexually assaulted.”

Judge Timothy J. Schutz dissented, arguing the central problem was that jurors were told Ortiz’s default meant he admitted the allegations, and the trial judge still asked them to decide whether Ortiz committed an assault.

“Yet, the court gave the jury no guidance on how it was to resolve this inconsistency,” Schutz wrote. The result was “a profound reward: a judgment entered in Ortiz’s favor without ever having to face a trial on the merits of E.B.’s claims against him.”

On appeal to the Supreme Court, J.B.’s attorney argued that she did everything right, and the law imposes a consequence for Ortiz’s failure to participate.

But Metro Taxi also followed the rules, interjected Gabriel.

“Help me understand how it could be that we could prevent a non-defaulting defendant from putting on their best defense,” he said.

“Isn’t your objection more precisely the fact that Mr. Ortiz was allowed to testify the way he did?” asked Justice Carlos A. Samour Jr.

“Yes. I think, fundamentally, a defaulting defendant shouldn’t be able to come in and testify contrary to their default,” said attorney D. Dean Batchelder for J.B.

“So, the evidence (of no assault) can come in, but not through Mr. Ortiz?” asked Justice Maria E. Berkenkotter.

In response to questioning, Batchelder acknowledged Ortiz had actually appeared at the first trial, which resulted in a mistrial because Ortiz improperly spoke to jurors. J.B.’s attorneys did not try to take Ortiz’s deposition before the second trial months later.

But “what’s the incentive for that if default has entered and the plaintiffs are preparing for trial and thinking only about Metro’s liability, not anticipating that they will have to litigate a case against Mr. Ortiz?” wondered Márquez.

“With all due respect to the chief justice’s concerns about fairness, this is how it goes in court after court around the country,” said attorney Keith Bradley, representing Ortiz. “That’s the normal way.”

Leaving the default judgment intact against Ortiz would contradict the jury’s findings of no assault, he added.

“What would be your response if the jury had come back with a large verdict for $1 million against Metro Taxi?” asked Justice Brian D. Boatright. “It feels like the rule should be the same whether it’s a large verdict or a zero. You’re trying to say he gets the advantage of the trial because it worked out well.”

The case is J.B. v. MKBS, LLC et al.