concurring in result.
I agree that the court has jurisdiction to consider the counterclaim of the estate against the hospital and therefore the motion to dismiss was properly denied. To the extent that the majority opinion may be taken to imply that the estate may thereby embark upon a class action lawsuit, I strongly disagree.
Trial Rule 23 governs the maintenance of class actions and the concerns of that rule have not yet been addressed by the court. While I do not see it as a matter of jurisdiction (since the individual plaintiff may always elect to proceed on his individual claim), I nevertheless believe that it would be wholly inappropriate for an estate or personal representative to maintain a class action as a part of the estate proceedings. Under the probate code the personal representative owes a duty to the estate (and its beneficiaries) which is supported by oath. IC 29-1-13-3 authorizes him to maintain a suit for any demand due the decedent or his estate. Maintenance of a class action potentially exposes the estate to expenses and delays that are inimical to its best interests and the obligations of the personal representative.
I therefore concur only in affirming the denial of the motion to dismiss.