(concurring in part, dissenting in part). I would agree with the majority opinion to uphold the trial court’s ruling that if Dr. Kambly’s conduct is found to constitute malpractice plaintiff will be liable to pay damages to the extent of the applicable amount of insurance coverage.
However, we go in different directions in deciding the question of insurance coverage for Dr. Kambly’s legal expenses. I would affirm the trial court’s finding that plaintiff is not liable for the legal expenses of Dr. Kambly in his suit with Bettina Cotton.
Defendant Kambly argues, relying on Cotton v Kambly, 101 Mich App 537, 541; 300 NW2d 627 (1980), that there is no reason to distinguish between the type of malpractice alleged in Cotton and others.
Cotton is an action where the patient, Bettina Cotton, at least arguably, alleges a violation of a standard of care by a medical practitioner. The medical practitioner, however, takes the position that medical treatment or care is not involved, contending that the intimacy between the parties was the result of a love affair. We should not presuppose that malpractice occurred.
It is argued concerning the action of Bettina Cotton, and I agree, that the coverage should not allow the wrongdoer unjustly to benefit from his wrong. It is not, therefore, the insured who should benefit, but the innocent victim who should be provided compensation for injuries. Cf. Bowman v *690Preferred Risk Mutual Ins Co, 348 Mich 531; 83 NW2d 434 (1957). All the same, viewing this action from the standpoint of Bettina Cotton, fact questions remain for determination of whether we have malpractice or a love affair gone awry.
Viewed from the standpoint of the insured, Dr. Kambly, we do not have a malpractice action but a love affair which did not have a blissful ending. The wrongdoer is Dr. Kambly and the innocent victim is the insurer which should not be liable for the legal expense of Dr. Kambly.
The law in Michigan, as set forth in MCL 750.90; MSA 28.285, holds sexual intercourse under pretext of medical treatment to be a felony:
"Any person who shall undertake to medically treat any female person, and while so treating her, shall represent to such female that it is, or will be, necessary or beneficial to her health that she have sexual intercourse with a man, and shall thereby induce her to have carnal sexual intercourse with any man, and any man, not being the husband of such female, who shall have sexual intercourse with her by reason of such representation, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.”
Part III, Coverage G(a) of the policy states: "there is no coverage under this section for legal expense incurred due to alleged criminal act”. This exclusionary clause is a valid part of the contract of insurance between the insurer and the insured, Dr. Kambly, and is applicable herein, and therefore the plaintiff should not be held liable for any legal defense.
Further, the following interpretation of public policy and contracts of insurance, found in New *691Amsterdam Casualty Co v Jones, 135 F2d 191, 193-194 (CA 6, 1943), pertains to this case:
"It is argued that one cannot insure himself against his own intentional, illegal acts. This contention is grounded on the proposition that such a contract is contrary to public policy and is therefore void. The public policy governing such contracts is that one should not profit from his own wrongful act, and that contracts to commit illegal acts or agreements which have a tendency to encourage unlawful conduct, are not to be sustained.”
Based on the above-mentioned contract language and policy reasons, I would affirm the trial court.