(a)(1) Whenever the death of a person or an unborn child as defined in § 5-1-102 is caused by a wrongful act, neglect, or default and the act, neglect, or default would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then and in every such case, the person or company or corporation that would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person or the unborn child as defined in § 5-1-102 injured, and although the death may have been caused under such circumstances as amount in law to a felony.
(2) The cause of action created in this subsection shall survive the death of the person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another.
(3) A person is not liable under this subsection when the death of the unborn child results from:
(A) A legal abortion, including an abortion performed to remove an ectopic pregnancy or other nonviable pregnancy where the embryo is not going to develop further;
(B) The fault of the pregnant woman carrying the unborn child;
(C) Assisted reproduction technology activity, procedure, or treatment;
(D) Actions occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization; or
(E) A woman or her healthcare provider using contraception approved by the United States Food and Drug Administration.
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
(c)(1) Every action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed, except the action may be commenced against a person in the time period permitted to bring a murder charge under § 5-1-109(a) if the person was convicted of one (1) of the following offenses:
(A) Capital murder, § 5-10-101 ;
(B) Murder in the first degree, § 5-10-102 ; or
(C) Murder in the second degree, § 5-10-103 .
(2) If a nonsuit is entered for an action authorized by this section, the action shall be brought within one (1) year from the date the nonsuit was entered without regard to the date of the death of the person alleged to have been wrongfully killed.
(d) The beneficiaries of the action created in this section are:
(1) The surviving spouse, children, father, mother, brothers, and sisters of the deceased person;
(2) Persons, regardless of age, standing in loco parentis to the deceased; and
(3) Persons, regardless of age, to whom the deceased stood in loco parentis at any time during the life of the deceased.
(e) No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.
(f)(1) The jury or the court, in cases tried without a jury, may fix such damages as will be fair and just compensation for pecuniary injuries, including a spouse's loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased.
(2) When mental anguish is claimed as a measure of damages under this section, mental anguish will include grief normally associated with the loss of a loved one.
(g) The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented during trial or in connection with any submission for approval of a compromise settlement, shall fix the share of each beneficiary, and distribution shall be made accordingly. However, in any action for wrongful death submitted to a jury, the jury shall make the apportionment at the request of any beneficiary or party.
(h) Nothing in this section shall limit or affect the right of circuit courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the circuit courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49-104 .
(i) It is not the responsibility of the personal representative of a deceased person to locate anyone in loco parentis who is not known to the personal representative to be in loco parentis to the deceased person.
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