Isaac v. Mount Sinai Hosp., 2505

• Citation: 3 Conn.App. 598,490 A.2d 1024
• Decision Date: 23 April 1985
• Docket Number: No. 2505,2505
• Court: Appellate Court of Connecticut
• Parties: Deborah J. ISAAC, Administratrix (ESTATE OF Redgnard ISAAC) v. MOUNT SINAI HOSPITAL et al.

Page 1024

490 A.2d 1024

3 Conn.App. 598

Deborah J. ISAAC, Administratrix (ESTATE OF Redgnard ISAAC) v. MOUNT SINAI HOSPITAL et al.

No. 2505.

Appellate Court of Connecticut.

Argued Feb. 6, 1985.

Decided April 23, 1985.

Richard A. Bieder, Bridgeport, with whom, on the brief, was Brenda C. Morrissey, Bridgeport, for appellee (plaintiff).

Andrew J. O'Keefe, West Hartford, with whom were Maureen A. Sullivan, Hartford, and, on the brief, Denise M. Phelan, Hartford, for appellee (defendant Anesthesia Associates, P.C.).

April Haskell, Hartford, for appellee (named defendant).

Louis B. Blumenfeld, Hartford, for appellee (defendant St. Francis Hosp.).

Lois Tanzer, Hartford, for appellee (defendant Richard Weltman).

Before DUPONT, C.P.J., and HULL and SPALLONE, JJ.

SPALLONE, Judge.

This is an appeal from the dismissal of a wrongful death action brought pursuant to General Statutes § 52-555. ¹

The decedent, Redgnard Isaac, died on April 20, 1979, while a patient at the defendant Mount Sinai Hospital. On March 30, 1981, the plaintiff, who is the decedent's daughter, filed a wrongful death action in which she alleged negligence in the treatment of the decedent by Mount Sinai Hospital and by the other defendants, St. Francis Hospital, physician Richard B. Weltman and Anesthesia Associates, P.C. The plaintiff also alleged in the complaint that she had been appointed administratrix of the decedent's estate on or about May 17, 1979. In the summer of 1982, she apparently discovered that she had only been authorized under General Statutes § 45-266 to handle survivorship property and had not, in fact, been appointed as administratrix. She was ultimately appointed administratrix of the decedent's estate on September 28, 1982.

On February 4, 1983, Anesthesia Associates, P.C., moved to dismiss the action for lack of subject matter jurisdiction. The motion to dismiss, in which the other defendants joined, rested on the ground that the plaintiff had failed to comply with the requirement of General Statutes § 52-555, which provides that an "executor or administrator" may recover thereunder. On March 25, 1983, the plaintiff requested permission to amend her complaint to reflect that she had been duly appointed administratrix of the estate on September 28, 1982, and moved to be substituted, in her capacity as administratrix, as party plaintiff. The trial court granted the motion to dismiss and the plaintiff appealed.

The trial court correctly considered the defendants' motion to dismiss before reaching the plaintiff's request to amend and motion to substitute. When a question of jurisdiction is brought to the court's attention, that issue must be resolved before the court can move on to other matters. Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982). This would appear to be particularly true where the question raised concerns subject matter, as opposed to personal, jurisdiction. See id., 298-99, 441 A.2d 183 (Peters, J., concurring).

"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. 59 Am.Jur.2d, Parties, §§ 20, 21. 'An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent.' Bar Association v. Connecticut Bank & Trust Co., 20 Conn.Sup. 248, 262 [131 A.2d 646 (1957) ]. Not having a legal existence, it can neither sue nor be sued. Vonchina v. Estate of Turner, 154 Cal.App.2d 134 [315 P.2d 723 (1957) ]; 2 Locke & Kohn, Conn. Probate Practice § 375." Estate of Schoeller v. Becker, 33 Conn.Sup. 79, 79-80, 360 A.2d 905 (1975).

General Statutes § 52-555 creates a cause of action that may be maintained only by an executor or administrator of an estate. Keogh v. Bridgeport, 187 Conn. 53, 58, 444 A.2d 225 (1982). " 'Death, at common law, is not a recoverable element of damage.' Foran v. Carangelo, 153 Conn. 356, 359 [216 A.2d 638 (1966) ], citing Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668 [136 A.2d 918 (1957) ], and 22 Am.Jur.2d, Death, § 1. It is only by reason of statute that a death action is maintainable in Connecticut. General Statutes § 52-555. This statute provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually." Cofrancesco v. Smith, 29 Conn.Sup. 139, 141-42, 275 A.2d 608 (1971).

Under General Statutes § 52-555, standing to bring a wrongful death action is thus conferred only upon either an executor or an administrator. By the defendants' motion, the plaintiff's standing to request an adjudication has been challenged. Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). The focus is properly upon the party wishing to get his complaint before the court and not upon the issues he wishes to have adjudicated. Berlin v. Santaguida, 181 Conn. 421, 423, 435 A.2d 980 (1980).

At the time the plaintiff brought this action, she erroneously alleged that she brought it as the administratrix of the decedent's estate. The plaintiff was not issued letters of administration, however, until September 28, 1982, more...