## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Kirk v. All

state Insu rance Co. , 2012 IL App (5th) 100573

Appellate Court Caption STEVEN THOMAS KI RK, as Assigne e for Enver Hamiti, PlaintiffAppellant, v. AL L STATE I NSURAN C E COMPANY, DefendantAppellee

.

District & N o. Fifth District Docke t No. 5-10-0573

Filed May 22, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from an acc ident in which plaintiff’s motorcycle was struck by a vehicle insured by defe ndant, the trial court err ed in enter ing part i al s ummary judgme nt for defenda nt on plaintiff’s complaint as t he assig nee of the driver of the insured vehicle alleg ing that defe ndant insur er ac ted in bad faith when it paid the policy limit s in return for a rele ase of claims ag ainst its insured, but not claims a g ainst the driver of the vehicle, since the insurer n ever advised the driver of any offe rs or demands and he was not advised to seek counsel o r t h at h e could be
persona lly liable for damag es in excess o f t h e p olicy limit s, the insurer failed to take notice of the driver’ s corr ect addre ss and sent

corr espondenc e to the wrong addre ss, the d ri v er was never consulted befor e his name was remove d from the rele ase, and the insurer’ s pay ment of the policy

limit s did not ex cuse it fr om its dut y to defe nd the driver

.

Dec ision Under Review Appea l from the Circuit Court of Madison County
, No. 10-L -50; the Hon. Clarenc e W. Harr ison I I , J udg e, pre siding.J udg ment Reverse d and re manded.

Counsel on Appea l Chris Kolker, of K olker L aw Of fice s, P.C., of Belleville, for appellant.

Michae l J

. Be desky
, of Reed, Armstrong
, Gorman, Mudg e & Morrissey
, P.C., of Edwardsville, for appellee

.

Panel J USTI CE GOLDENHERSH delivere d the judgme nt of the court, with opinion.
J ustices Welch and Stewa rt conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Steven T homas Kirk, as assig nee for Enver Hamiti
, appea ls from an order of the circ uit court of Madison County g ranting partial summary judgme nt in fav or of defe ndant, Allstate Insuranc e Company (Allstate). The issue raised on appea l is whether the trial court err ed in finding that Kirk induced a rele ase of Hamiti, there by absolving Allstate of any bad faith, and in g ranting partial summary judgme nt in favor of Allstate. We reve rse and re mand.

¶ 2 FACTS ¶ 3 On J une 30, 2006, Hamiti was driving a truck owned by L indsey Skenderi, when he ran

a stop sign and collided with a motorcycle operated by Kirk. Kirk’s leg was amputated as a result of the i njuries he sustained i n the accident. S kender i’s truck wa s insured by Allstate with liability limit s in the am o u n t o f $100,000 per person and $300,000 per acc ident. Skenderi lived at 650 State Route 162 in Mary ville, I llinois

. Hamiti was also insured by his

own automobile liability policy with Merc ury Insuranc e Company (Mer cury ). Hi s p olicy provided liability

limit s in the amount of $50,000 per person a nd $100,000 per a ccide nt. ¶ 4 On J uly 14, 2 0 0 6
, an Al l s t at e cl aim s adjuster, J ammie Klepar ski, called H amiti and

rec orded his statement. The adjuster specific ally asked Hamiti if he lived at 650 State Route 162 in Mary

ville, I llinois

. Hamiti told the adjust er he d i d not live there
, but rathe r l ived at 253 North 1 3 t h S tree t in Wood River, I llinois

. Despite lear ning Hamiti’s curr ent addre ss, Allstate sent all communications to Hamiti at t he incorrec t Mary ville addre ss until at l east Marc h 2008. ¶ 5 Kirk reta ined the Mey er L aw Firm to r epre sent him. After Hamiti’s rec orded statement

was obtained, Allstate assig ned its employ ee, Rick Gre en, as the adjuster in the matter. Gre en

-2-acknow ledg ed that liability was clea rly on Hamiti and that Hamiti was an insured under the Allstate policy

. ¶ 6 Given the extent of Kirk ’s i n j u ri es , t h e Mey er L aw Firm believed that the injury was worth more than the combined policy limit s of the Allstate and Merc ury policies, which amounted to $150,000. Amy Mey er of the M ey er L aw Firm made policy limit demands to both Allstate and Merc ury

. In particula r, in Septe mber 2006, Meyer advised Gre en that the medi ca l b i l l s exceede d $100,000. Gre en admitted that ear ly in neg otiations both he and Allstate wer e aw are that this was a ca se in which damag es excee ded liability limit s. ¶ 7 Mey er also indicat ed t h at h er l aw fi rm was considering pursuing Skenderi’s pe rsonal assets. Meyer be lieved that it wa s possible that Skende ri owned r estaura nts throughout the Midwest. Mey er did not show any interes t i n pursuing Hamiti’s persona l assets, but told Gre en she would pursue rec overy from Hamiti’s Merc ury policy

. Gre en advised Skenderi via letter that Kirk’s damag es exceede d the policy limit s of her Allstate policy and rec ommended that she might wa

nt to hire her own attorney to pr otect her persona l a ssets. Whil e a simil ar letter was mailed t o Ha m i ti, Hamiti never rec eived it beca use All state sent it to the wrong addre ss. ¶ 8 Beca

use this was an excess case , Gre en had “ale rt confe renc es ” wi t h h i s s u p er v i s o r, Sonje Sturdivant. On September 29, 2006, Sturdivant advised Gr een a s follows:
“Please be sure to chec k client file for alternate policies to make sure that we do not have

excess cover ag e. Was there a formal demand for the limit ? I f so, we need to r espond in writing with a copy to the insured. Also, as doc umented, you will need to have insured hire his own counsel to handle the claim ag ainst his pe rsonal assets. L astly
, we will not issue pay ment until we can secur e a rele ase so if they are g oing to pursue insured, we will not issue chec k.”
Gre en replied to Sturdivant that he would che ck for other policies a

nd make sure a release

was signe d befor e issuing a chec k for the limit s of liability

. Gre en agree d that a rele ase would include Hamiti. ¶ 9 On Octobe r 17, 2006, Gre en off ere d the $100,000 policy limit s to Meyer and included

a rele ase in the corr espondenc e. Meyer e-ma iled Gre en back the same day and thanked him for the offe r to settle, but advised him that she was g oing to sue both Skenderi and the driver, Ha miti. Mey er also said, “Upon settlement with Allstate, y ou will obviously be dis mi s s ed out.” ¶ 10 On November 1, 2006, at 3:04 p.m., Mey er e-ma iled Gre en, telling him she “would like
to g et the entire claim settled ASAP.” She went on to tell Gre en that the driver, Hamiti, did have insu ra n ce with Merc ury and she was prese ntly working on that. She further advised Gre en as follows: “We need to chang e the languag e of the settlement and rele ase to include only y our insureds, and to pr ovide an exception f or any other insurance cover ag e they may have which may provide cover ag e (doubt there is any ), as they are n o t returning the aff idavit.” On that same date at 3:07 p.m., Gre en replied: “No problem. I will send out new rele ase today taking insured driver’ s name off of it.” The following day
, Gre en sent another rele ase, which did not include Hamiti. Plaintiff signe d t h e s econd rele ase that excluded Hamiti on Febr

uary 21, 2006.

-3-¶ 11 Gre en admitted that there wer e no neg otiations reg arding the remova l of Hamiti’s name

from the rele ase. Meyer asked Gre en to remove it so she could pursue acc essing the liability

cover ag e provided to Hamiti by Merc ury , and Gre en complied. Gre en admitted that he never spoke to Hamiti and that the only communication Allstate had with Hamiti was the rec orded statement made in J uly

2006. ¶ 12 Gre en further admitted that if a letter was not se nt in J uly 2006 to H amiti to the c orre ct addre ss, that would be an element of bad faith. Gre en stated that Hamiti w as never advised of any offe rs or demands and was never sent a c opy

of the letter from the Mey er L aw Firm which said that plaintiff’s medical bills exceede d the policy limit s. Gre en also admitted that Hamiti should have bee n consulted before lang uag e protecting him was remove d from the rele ase. ¶ 13 On Fe b ru ar y 2 0
, 2007, Kirk filed an action ag ainst Hamiti for perso n al i n j u ri es h e

rec eived in the J une 30, 2006, acc ident. In Marc h 2007, Allstate rec eived notice that Hamiti

was being sued but failed to notify Hamiti. Allstate did not provide Hamiti with an attorney until Fe bruar

y 29, 2008. The case went t o jury trial on November 23, 2009, afte r which a judgme nt was enter ed on the verdic t in the amount of $1.375 milli on, with a $100,000 setoff for the policy

limit s paid by

Allstate, for a

total of $1.275 milli on, plus costs. ¶ 14 On J anuar

y 20, 2010, afte r neg otiating a settlement wi t h M er cu ry , Ki rk obtained an assig nment of rights from Hamiti to sue All state for bad faith. On that same day
, this badfaith case was filed with Kirk as the assig nee of Hamiti in which plaintiff alleg ed, inter alia
, that Allstate violated i t s d uties to Hamiti and obtained a rele ase that excluded Hamiti and exposed him to persona l liability

. The lawsuit further all e g e d th a t A llstate wrong fully ref

used to defe nd Hamiti and did not properly defe nd him at trial. ¶ 15 On September 27, 2010, Al l s t at e fi l ed a m o t i o n fo r p ar t i al summary judgme nt. On October 29, 2010, the trial court enter ed partial summary judgme nt in favor of Allstate. The trial court h el d t hat it was g ranting summary judgme nt in favor of Allstate “bec ause Kirk induced the r elea se” that omitt ed Hamiti. P laintiff timely appea ls.

¶ 16 ANALYSI S ¶ 17 The issue raised on appea l is whether the trial court err ed in finding that Kirk induce d a rele ase of Hamiti, there by absolving Allstate of any bad faith, and in g ranting partial
summary judgme nt in favor of Allstate. Kirk argues t h e trial court’s ruling was in err or beca use it f ailed to c onsider the corr ect status of the par ties. As assig nee, Kirk stood in the shoes of the insured, Hamiti, a nd there fore
, Kirk’s status in the underly ing case is not even rele vant. In the instant case , Kirk insists that the fac ts show that Allstate committed bad faith by taking out languag e in a rele ase that protec ted Hamiti, who was Allstate’s insured under the policy
, without informing him it was doing so and without obtaining his consent. Allstate replies that the trial court was corr ect in enter ing partial summary judgme nt in its favor beca use Kirk induced the rele ase in the underly ing action. Allstate further replies that a badfaith case is untenable here beca use it paid its policy limit s, and bad-f aith case s can only arise where an insurance company fails to pay its policy limit s. After car eful consideration, we ag ree with plaintiff.

-4-¶ 18 As a g ener al rule, summary jud gm en t i s en co u ra ged as an ai d t o t h e ex p ed i t i ous

dispositi on of a lawsui t

. Dr u ry Displays, Inc. v. Brown
, 306 I ll. App. 3d 1160, 1164, 715 N.E.2d 1230, 1234 (1999). However
, a movant may b e granted summary judgme nt wher e all the pleading s, discovery materia ls, a dmissions
, and all permissible infere nces, analy zed in the light most favor able to the nonmoving party , so clea rly favor the movant that no fairminded individual could dispute the movant’s rig ht to a judgm ent in his or her favor

. W ysock i v. Bedr osian
, 124 I ll. App. 3d 158, 164, 463 N.E.2d 1339, 1344 (1984). The trial court’s decision to g rant summary judgme nt will be aff irmed if, afte r examining the rec ord, there is no g enuine issue of materia l fac t and t h e movant was entitled to a judgme nt as a matter of law. Fremont Indemnity Co. v. Special E a r th Equipment Corp. , 131 I ll. App. 3d 108, 112, 474 N.E.2d 926, 930 (1985). In an appea l from a summary judgme nt ruling
, revie w is de novo

. Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 I ll. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Douglas v. Allied American Insurance
, 312 I ll. App. 3d 535, 538, 727 N.E.2d 376, 379 (2000)

. ¶ 19 An assig nment take s p l ac e wh en s o m e i d en t i fi ab l e i n t erest is transfe rre d from the assig nor to the assig nee. Cincinnati Insurance Co. v. American Hardware Manufacturers Ass’n
, 387 I ll. App. 3d 85, 100, 898 N.E.2d 216, 229-30 (2008). A valid assig nment require s proof of intent to make the assig nment and manifestation of that intent, and the assig nor must have “ ‘eith er ac t u al ly or potentially the thing which he attempts to assig n.’ ” Cincinnati Insurance Co.
, 387 I ll. App. 3d at 100, 898 N.E.2d at 230 (quoting Owens v. McDermott, W ill & Emery
, 316 I ll. App. 3d 340, 350, 736 N.E.2d 145, 155 (2000))

. The assig nee rec eives all the assig nor’s rig ht, title, or interest in the thing assig ned and ca n claim no g reater rig ht

or interest than the assig no r p o ssessed. Cincinnati Insurance Co.
, 387 I ll. App. 3d at 100, 898 N.E.2d at 230. A cl ai m t h at i s assig ned prior to a judgme nt constitutes a sufficie nt potential claim to make the assig nment valid. Cincinnati Insurance Co.
, 387 I ll. App. 3d at 101, 898 N.E.2d at 230-31 (citing Daugherty v. Blaase
, 191 I ll. App. 3d 496, 499-500, 548 N.E.2d 130, 132 (1989) ). ¶ 20 In the instant case , Hamiti assig ned to Kirk his rig ht to rec over from Allstate for a ny bad faith that may have taken place in settling Kirk’s claim ag ainst Hamiti. After the assig nment

was made, Kirk rec eived all Hamiti’s rig hts and interest in reg ard to Hamiti’s bad-f aith claim
ag ainst Allstate and now stands in Hamiti’s shoes. According ly
, the i ssue of whether Kirk induced the rele ase that omitted Hamiti is irrele vant in the instant case

. As assig nee, Kirk is entitled to all of Hamiti’s rig ht, title, or interest in the bad-f aith claim ag ainst Allstate. I f Kirk somehow had coer ced or tricked Allstate in removing Hamiti’s name from the rele ase, that might be a

rea son for e nteringpartial summary judgme nt in favor of

Allstate. ¶ 21 Howeve r, the re cord be fore us is completely devoid of any ty pe of c oerc ion or tricker

y involved in the underly

ing a ction. On October 17, 2006, Green of fer ed the policy

limit s to Mey er and sent a rele ase, which included Hamiti. On November 1, 2006, at 3:04 p.m., Mey er

e-ma iled Gre en and asked him to chang e the l an gu age o f the rele ase to cover only “your insureds” in order t o p ro v i d e an exception for any other cover ag e which may exis t. Three minutes later, at 3:07 p.m., Gre en responde d: “No problem. I will send out new rele ase today taking insured driver’ s name off of it.” Gre en admitted no neg otiations took place reg arding the remova l of Hamiti’s name from the rele ase. Mey er asked Gre en to omit Hamiti’s name,

-5-and he did so.

¶ 22 At best, the issue of inducement would be a question for the finder of fac t, and thus, w e find that the trial court err ed in enter ing partial summary judgme nt in favor of Allstate on the basis of inducement. The fac t that Kirk’s attorney in the underly ing action soug ht that Hamiti be excluded from the rele ase, without any ty pe of coer cion or trick er y , d o es n ot relieve Al lstate of its duty to Hamiti. I f Allstate truly believed the rele ase should only provide a rele ase for Hamiti to the extent that h e h ad other cover ag e with Merc ury or perha ps some other insurance company , Allstate should have specific ally stated that in the rele ase lang uag e and should not have omitted Hamiti entirely from the rele ase. Instead it appea rs that Allstate tried to clea

r itself from exposure in an excess case at the expense of Hamiti. Her e, Kirk, as assig nee, sta

nds in Hamiti’s shoes, and if the f acts show that Ha

miti was the victim of bad faith by Allstate, Hamiti has assig ned his rig ht to recove r ag ainst Allstate to Kirk. ¶ 23 We ne x t c onsider Allstate’s claim that partial summary judgme nt was proper ly enter ed in its favor bec ause Hamiti r ece ived a c omplete setoff of the $100,000 settlement. Allstate insists that beca

use Hamiti rec eived the benef it of the full $100,000 liability limit s as a setoff

as a mat t er o f law, Alls tate’s settlement cannot repre sent bad faith, and Alls tate’s conduct cannot be considere d vexatious or unrea sonable. Allst ate insi sts bad faith can only arise if it failed to pay its policy limit s. In short, Allstate asks us to totally disreg ard its trea tment of Hamiti in the underlying a ction. ¶ 24 I llinois case s have long held that an ins urer cannot discharg e it s duty to defe nd simply by paying policy limit s. Conway v. Country Casualty Insurance Co.
, 92 I ll. 2d 388, 442 N.E.2d 245 (1982); American Standard Insurance Co. v. Basbagill
, 333 I ll. App. 3d 11, 775 N.E.2d 255 (2002); Douglas v. Allied American Insurance
, 312 I ll. App. 3d 535, 727 N.E.2d 376 (2000). In Conway
, the insurer arg ued that its pay

ment of policy

limit s to the claimant discharg ed it f

rom its duty to de fend. Our supreme court disag ree d and held that “since the insurer’ s duty to defe nd i t s i n s u re d is not depende nt upon a duty to indemnify
, but arises from the undertaking to defe nd stated in the policy
, an insurer’ s pay ment to its policy limit s, without more, does not excuse it from its dut y t o defe nd.” Conway
, 92 I ll. 2d at 394, 442 N.E.2d at 247. ¶ 25 In Douglas
, we noted that there are “strong public p o l i cy ar g uments ag ainst allowing insurers to discharg e their duty to defe nd by paying policy limit s and then leaving the insured
to fend for himself.” Douglas
, 312 I ll. App. 3d at 543, 727 N.E.2d at 382. To allow insurers
to partake in such prac tice would be t o re n d er a near nullity one of the most signific ant protec tions a ffor ded by the policy
, a defe nse. Douglas
, 312 I ll. App. 3d at 543, 727 N.E.2d
at 382 (citing Simmons v. Je f f o rds
, 260 F. Supp. 641, 642 (E.D. Pa. 1966)). We require insurers to do more than simply pay policy limit s beca use if we did not, “ ‘ “the insurer could walk int o court, toss the amount of t he poli cy on the t able, and blithely inform the insured that t h e rest was up to him,” ’ ” and this would be a brea ch of the insurer’ s contra ct to defe nd. Douglas
, 312 I ll. App. 3d at 543, 727 N.E.2d at 382 (quoting National Casualty Co.

v. Insurance Co. of

North America
, 230 F. Supp. 617, 622 (N.D. Ohio 1964) (quoting 8 J ohn Alan Applema

n, Insuranc e L aw a

nd Practice § 4685 (1962)) ). ¶ 26 In the instant c ase, Gre en admitted that Hamiti, a s the driver of Skenderi’s truc k which

-6-was involve d i n t h e acc ident, was an insured under the Allstate policy which insured the

truck. In neg otiating settlements of case s in which the rec overy may exceed policy limit s, the insurer must g ive at least as equal consideration to the insured’s interest as it does to its own. Edwins v. General Casualty Co. of W isconsin , 78 I ll. App. 3d 965, 968, 397 N.E.2d 1231, 1232 (1979); see also O’Neill v. Gallant Ins u r a n ce Co

. , 329 I ll. App. 3d 1166, 1172, 769 N.E.2d 100, 106 (2002) . This did not happen her e. ¶ 27 Gre en admitt ed that he never spoke with Hamiti, and Allstate ne ver advised Hamiti of
any of the offe rs or demands made in the case , nor did it advise him t h at h e s h o u l d seek counsel due to the excess nature of the case and that he could be held persona lly responsible for any damag es in excess of the policy

. The only contac t Allstate had with Hamiti was when Allstate contac ted Hamiti and took a rec orded s tatement. At that time, Hamiti informed Allstate of his addre ss, b u t Allstate failed to take notice of the corr ection and all

corr espondenc e wa s sent to an incorr ect a ddress. ¶ 28 Gre en also admitted that Hamiti should have been consulted befor e languag e prote cting him was remove d fro m t h e re l ease

. The rec ord befor e us shows that Gre en’s supervisor specific ally told Gre en to make sure that the insured was rele ased befor e a settlement chec k

was issued. Despite these direc tions, Gre en issued t h e chec k to Kirk without secur ing a rele ase f or Hamiti and in fac t took Hamiti’s name off of the release. There afte r, Kirk filed

a persona l injury action ag ainst Hamiti, and afte r a jury trial a verdic t in excess of $1 milli on, for which Ham i t i i s p ersonally liable, was enter ed ag ainst Hamiti. Allstate’s pay ment of $100,000 in policy

limit s did not discharg e Allstate of its duty to defe nd Hamiti, nor did it
g ive Allstate the rig ht to relea se Skender i at the expense of Ha miti. ¶ 29 Allstate asser

ts that it did not have any “lev er age t o n ego t i at e” an d was left with no choice but to sacr ifice Hamiti for Skenderi. In support of its asser tion, Allstate cites Pek

in In s u r a nce Co. v. Home Insurance Co.
, 134 I ll. App. 3d 31, 479 N.E.2d 1078 (198 5 ), an d Country Mutual Insurance Co. v. Anderson
, 257 I ll. App. 3d 73, 628 N.E.2d 499 (1993). Both a re disting uishable fr om the instant case. ¶ 30 P ek i n i s d i s t i n gu i s hable from the instant case for sever al rea sons. Fi rs t , P ek i n wa s decide d l o n g b ef

o re our ruling in Douglas

. Second, the fac ts in Pek in are distinguishable beca use the driver in Pek

in worke d for the Whit e Sox
, so there was an ag ency issue involved, which is t o tally absent in the instant case

. Third, no excess verdic t was issued in Pek in
, wher eas in the instant case Hamiti is exposed to persona l liability of over $1 milli on beca use Allstate failed to c ommunicate with him. ¶ 31 As for Anderson
, that case involved t h re e p ar t i es an d t h ei r i n s u re rs

. T h e plainti ff, Kather ine Shoemaker
, sustained cata strophic inju ri es when the vehicle in which she was riding collided with a truck being driven by Ander son. At the time of the acc ident, the truck

was lease d by L awr ence and was transporting g rave l under a contra ct with Elmhurst. Anderson
, 257 I ll. App. 3d at 7 4
, 6 2 8 N.E.2d at 500. Shoemaker proposed a settlement involving all the parties, but only Ander son, L awr ence , and their insurers ag ree d. Elmhurst and its insurer, Wausau, ref used to participate in the settlement. The first two parties ag ree d
to settle the case for $1.55 milli on. A hear ing was held and a g ood-fa ith finding was enter ed by the trial court. Elmhurst proce eded to trial, afte r which a jury returne d a verdic t in excess

-7-of $4.22 milli on, and afte r the setoff of $1.55 milli on, Elmhurst rema ined persona lly liable

for the rema ining amount. Elmhurst was only cover ed by a $500,000 policy throug h Wausau. The Anderson court spec ifically stated: “Wausau unquestionably was aware of t he ramifications of t his settlement at l east one
y ear befor e it transpire d, y et it elec ted to ref use the o ffe r and g o to trial. There was no require ment that, mere ly beca use Elmhurst and Wausau chose to proce ed in this manner , Country Mutual and Pekin should have compromised the interests of both Ander son and L awr ence and fore g o a settlement opportunity

. I t is an insurer’ s unrea sonable failure to pursue a settlement offe r, rathe r than its acc eptanc e of one, which will expo s e i t t o liability for ba d faith.” Anderson , 257 I ll. App. 3d at 79, 628 N.E.2d at 503.
The major distinctions betwee n Anderson and the instant case are the issues of notice and consent. I n Anderson
, Elmhurst was included in the s ettlement di scussions and was awa re i t co u l d b e exposed to persona l liability
, wher eas Hamiti was not awa re of settlemen t neg otiat i o n s an d was not informed he could be held persona lly responsible. Additionally
, there was no g ood-fa ith hearingin the prese nt case as there was in Anderson

. ¶ 32 We see no need to g o into a protrac ted discussion of bad faith at this juncture. Suffice it
to say , there are gen u i n e issues of materia l fac t prese nt here that prec lude entry of partial
summary judgme nt in favor of Allstate. Acc ording ly
, we reve rse the order of the trial court g ranting partial summary judgme nt in favor of Allstate and rema nd for further proce eding s consistent with this opi nion. ¶ 33 For the fore g oing rea sons, the judgme nt of the circ uit court of Madison County is he reby

reve rsed a

nd the ca use re manded f

or fur ther proc eeding s.

¶ 34 Reverse d and re manded.

-8-