concurring, writing specially.
[¶ 29.] I respectfully agree with the lion’s share of the majority’s writing. For that reason I give my concurrence to the opinion. For purposes of attaining a majority decision on the crucial aspects of this case, I reluctantly give my concurrence to the decision to remand this case to the trial court. With that said, I write specially to make clear the few objections I have with the majority opinion.
The acts by Engelmann were intentional
[¶ 30.] The acts by Engelmann were intentional. The plaintiffs at trial put on a masterful display to convince the judge and jury that somehow the acts they were accusing the defendant of could be considered medical malpractice. The jury was instructed that any negligent misconduct on the part of the defendant was medical malpractice, and that sexual contact could *203somehow be “negligence.” See Martinmaas v. Engelmann, 612 N.W.2d 600 (S.D.2000). As the testimony of the expert doctors reveal, no medical book used in the civilized world recognizes the behavior of Engelmann as medical in nature. Of course it is malpractice, but it is also intentional malpractice that is sexual in nature. Terming these actions as medical is just as much a smokescreen now on the part of the plaintiffs, as it was on the part of the defendant when he committed these acts.
[¶ 31.] If it walks like a duck, and if it quacks like a duck, it sure isn’t a goose; and that is what the plaintiffs are claiming. They argue that this intentional sexual misconduct (termed so by their own testimony) is somehow medical enough in nature to fall under the guise of medical malpractice and is covered by the doctor’s professional insurance policy. That is plainly antithetical to South Dakota law and a long history of South Dakota jurisprudence.
[¶ 32.] South Dakota public policy does not allow insurance coverage for intentionally tortious acts. This sort of malpractice, inflicted by Engelmann, was intentional and inherently injurious. State law clearly maintains that it is against public policy in South Dakota for one to insure against an intentional act.11 St. Paul has appropriately relied upon that well-known axiom. South Dakota has recognized this for many years. See De Zotell v. Mutual Life Ins. Co. of New York, 60 S.D. 532, 245 N.W. 58, 59 (1932) (“The principles which forbid such unconscionable enrichment of the criminal are implicit in the ancient common-law maxim ‘Nullus commodum capere potest de injuria sua propria’ (Co Litt 148 b) anglicized as section 49 of our 1919 code providing that ‘no one can take advantage of his own wrong.’ These principles require no exposition, and are supported by an almost imperative public policy”); Zeigler v. Ryan, 63 S.D. 607, 262 N.W. 200 (1935) (an agreement to indemnify another against unlawful acts involving moral turpitude, is void if the unlawful act is known to such person at the time of its commission); Raphtis v. St. Paul Fire & Marine Ins. Co., 86 S.D. 491, 198 N.W.2d 505, 507 (1972) (“It is contra bonos mores to allow a man to insure against the consequences of his own rascality or recover for a loss resulting from his own criminal conduct.”); City of Fort Pierre v. United Fire and Cas. Co., 463 N.W.2d 845, 849 (S.D.1990) (“Were a person able to insure himself against economic consequences of his intentional wrongdoing, the deterrence attributable to financial responsibility would be missing”) (quoting Ambassador Ins. Co. v. Montes, 76 N.J. 477, 388 A.2d 603, 606 (N.J.1978)) (Henderson and Sabers, JJ., dissenting on other grounds); Klatt v. Continental Ins. Co., 409 N.W.2d 366, 372 n. 6 (S.D.1987) (“One cannot insure himself against the consequences of his willful acts, committed with the intent to inflict injury.”); State Farm Mut. Auto. Ins. Co. v. Wertz, 540 N.W.2d 636, 640 (S.D.1995) (“public policy prohibits extending insurance coverage to an individual who intentionally harms others”); 9 Couch on Insurance 2d, § 39:15 at 506-07 (1985 ed.) (“Any insurance which purports to protect the insured against any loss which he may purposely and willfully cause, or which may arise from his immoral, fraudulent, or felonious conduct, is void as against public policy.”).
*204[¶ 33.] This Court specified in Wertz that the “critical issue” is not whether the tortfeasor “intended to act, but whether he intended to inflict the resulting injuries.” Wertz at 639. “An insured’s act is not an accidental contributing cause of injury when the insured actually intended to cause the injury that results.... Nor can an insured’s intentional act be an accidental cause of injury when it is so inherently injurious that it cannot be performed without causing the resulting injury.” Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800, 802-03 (1986). See also Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 638 A.2d 1246, 1249 (1994), (holding that “an act is inherently injurious if it is certain to result in some injury, although not necessarily the alleged injury.” (emphasis in original)).
[¶ 34.] This Court held in American Family Mutual Ins. Co. v. Purdy, 483 N.W.2d 197 (S.D.1992), that as a matter of law, there is an inference that harm to the victim is expected or intended by the perpetrator of criminal sexual acts. “We hold these acts of criminal sexual contact are of such a nature that the intent to inflict bodily injury will be inferred as a matter of law. The exclusion for bodily injury either ‘expected or intended’ in this policy applies to these facts.” Id. at 201.
[¶ 35.] Similarly, in this present case, and in general, inappropriate sexual contact with a patient, combined with the utilization of improper examination positions, procedures and methods, which are solely for the prurient interests of the physician, are sure to result in injury to the patient.
[¶ 36.] Engelmann knew he was engaging in acts that were, at the very least, unprofessional conduct. He knew or should have known that conduct, such as he perpetrated, could result in everything from loss of licensure to criminal prosecution. These acts, although defined as malpractice, are not negligent professional conduct; these acts are intentional unprofessional conduct, of which it is against public policy to insure.
[¶ 37.] By the insurance contract definition, the conduct of Engelmann was intentional. It is against public policy to insure against intentional actions to cause harm. The purpose of the professional liability policy was to protect against negligent malpractice committed under a professional setting. The actions of En-gelmann ceased to be covered under the policy when he became engaged in inherently harmful, intentionally unprofessional conduct outside the scope of his employment.
[¶ 38.] As much as the families in this case, and the women involved, deserve our sympathy and compassion, we cannot be swayed by those emotions. The Court must look to the law to determine who is responsible for the payment of the verdict. There is ample evidence that the State of South Dakota believes the person who commits intentionally injurious acts should be required to pay, not the insurer.
[¶39.] Doctors and medical clinics as well as many other professions, insure themselves every day against the possibility that they may make a mistake. That they failed to diagnose something properly, that they gave the wrong medicine, that they gave the wrong advice. Those possibilities are foreseen and reasonably insurable. One should not be able to insure against intentional malpractice.
. A legislative expression of this public policy is also found in SDCL 53-9-3, which provides: “AH contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent, are against the policy of the law.”