Levine v. Wiss & Co

In Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 (1984), the New Jersey Supreme Court addressed the issue of whether an accountant selected by the parties in a matrimonial proceeding for the purpose of determining the valuation of certain business assets could thereafter be sued by one of the parties for accounting malpractice in connection with the opinion he rendered and by which the parties agreed in advance to be bound. In that decision, the Court held that while arbitrators are generally accorded immunity, their immunity is based upon the function that they perform, namely, a quasi-judicial decision-making function. In part, therefore, their immunity is based upon the great deference shown by our courts and by the United States Supreme Court to arbitration and the people who undertake to perform that task of dispute resolution. Pointing out that the accountant in Levine simply performed an accounting function, our Supreme Court held that his work was not shielded by immunity but was required to be performed in accordance with the usual dictates of his profession, thus exposing him to a suit for professional negligence in the event that he failed to do so. Id. at 251, 478 A.2d at 401-02. In so holding, the Court cautioned that the immunity afforded to arbitrators is designed to protect their integrity and their independence and to permit them to function without fear of adverse consequences. Id. at 250, 478 A.2d at 401. The Court held that any grant of immunity should not be extended "further than is needed to advance these purposes and underlying policies." Id. at 251, 478 A.2d at 401. Moreover, the Court commented that the fact that the accountant was court-appointed was of no consequence, because in doing so the trial court simply entered a consent order agreed upon by the parties that they would be bound by the valuation of the accountant, an act which did not alter the fact that the accountant there neither adjudicated a dispute nor acted in a quasi-judicial capacity. Id. at 252, 478 A.2d at 402. Based on this rationale, which the dissenting justice contended was an unnecessarily restrictive view of an arbitrator's function, see id. at 256-57, 478 A.2d at 404-05 (O'Hern, Justice, dissenting), the Court rejected the argument that the accountant was immune from that plaintiff's suit for professional malpractice. While acknowledging the favored status of an arbitrator, the Supreme Court permitted the parties to pursue litigation for professional malpractice as against the professional whom they had selected to perform their asset valuation. The Court reasoned that in that matter the expert sought to be sued was merely that, an expert privately retained and agreed upon by the parties. Levine v. Wiss & Co., supra, 97 N.J. at 251, 478 A.2d at 401-02. And in spite of the fact that the trial court there had issued an order giving binding effect to that expert's valuation as between the parties, the expert there performed a limited and discrete function, lacking in the exercise of discretion or judgment.