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Trials and Errors: Plaintiffs’ Attorneys Could Complicate Efforts to Help Businesses Hurt by COVID-19

By James Ballot, Senior Advisor, Strategic Communications, Triple-I

It’s been more than eight months since COVID-19 first struck the U.S., and millions of small business owners are still hurting. All the while, a few plaintiffs’ attorneys are treating the pandemic as another opportunity to profit from costly insurance litigation.

At a time when businessowners are looking for leadership to bring much needed financial support, these same attorneys are hoping legislators and judges will help them retroactively rewrite business income (interruption) (BI) insurance contracts. One key figure in this effort is John Houghtaling, a New Orleans-based plaintiffs’ lawyer who was featured in a recent Bloomberg Businessweek profile.

Yet, despite the efforts of Houghtaling and others, courts across the country have to date overwhelmingly affirmed BI insurance policies do not cover losses resulting from the COVID-19 pandemic. And the facts supporting these decisions offer clear and unambiguous evidence indicating BI insurance policies are not designed to cover pandemic-caused business interruptions.

Adds Michael Barry, Head of Media and Public Affairs, at the Insurance Information Institute, “Not one business interruption insurance policy in the U.S. was written on the assumption nearly every business would be interrupted at the same time.” Barry adds, “This is why regulators and judges are consistently siding with insurers who argue direct physical damage to property is needed to trigger a business interruption policy.”

Irrespective of insurers’ and trial attorneys’ competing points of view, the authors of the Bloomberg Businessweek article cite the need for timely and decisive action: “A yearslong legal battle might not be much help to struggling businesses,” the article states. As the end of 2020 approaches, litigation seeking to compel insurers to cover pandemic-related income losses appears likelier to further the lawyers’ interests as opposed to those of businessowners seeking financial support.

Other potential solutions are on the table, most of which are taking shape around the idea that the federal government is the only entity with the reach and financial resources to help businesses recover from an event the magnitude of a global pandemic. On this point, a growing consensus of legal scholars and insurance industry experts concur, with Stefan Holzberger, AM Best chief rating officer, concluding in commentary to a recent report, that “pandemic risk does not afford insurance companies any geographic diversification due to its global nature … Only a governmental program, or perhaps a public-private partnership, could provide the backstop sufficient to compensate for lost revenue to businesses.”

Watch: Can Businesses Win the Fight Over COVID-19 Insurance Claims

As a counterpoint to statements made by Houghtaling and other plaintiffs’ attorneys, Sherman Joyce, President of the American Tort Reform Association presents a competing vision for how American businesses can unite to recover economically from the COVID-19 pandemic: “Americans’ elected representatives — not the trial bar — should have the authority to regulate business within the U.S.” Joyce continues, “The courts must restore that balance of power by rejecting the dreaded return of regulation through litigation.”

Society of Insurance Research Survey Reveals Impact of COVID-19 on Insurance Professionals

The Society of Insurance Research (SIR) held its annual conference virtually in October, and, as expected, the impact of COVID-19 on the industry was at the top of the agenda.

SIR conducted a survey of insurance industry professionals in May to understand the impact of COVID-19 on the business climate. The survey asked how the pandemic was impacting staffing, budgets, work-from-home arrangements, business travel and professional development.

At the time of the survey, 97 percent of carrier respondents said staffing levels have not decreased. When asked about work-from-home arrangements, only 10 percent of respondents said they plan to return to the office full-time once restrictions are lifted.

Travel restrictions will remain in place indefinitely for most respondents. Even when travel restrictions are lifted, nearly everyone will remain cautious of traveling nationally, and nearly three-quarters expect their travel budgets to be reduced.

Micheal Myers, Lead Competitive Intelligence Analyst at USAA and President of SIR, said, “This was an extremely insightful and timely survey of industry professionals. SIR put the insights into action by quickly pivoting from planning an in-person conference to meeting virtually (with record attendance). We also published COVID-related research reference library to help researchers solve business problems. As is consistent with SIR’s mission, we provided these resources to members and non-members alike to advance the industry.”

Over 180 professionals responded to the survey; 67 percent were carriers and 33 percent were suppliers/vendors. A variety of lines and businesses were represented, including commercial, personal, life and health.

No Surprises: How Insurers and Their Customers Benefit from Financial Education

By Sean Kevelighan, CEO, Insurance Information Institute

Sean Kevelighan

Insurers have responded quickly and effectively to 2020’s extraordinary volume of hurricanes, wildfires, and civil unrest. These events are resulting cumulatively in billions of dollars in insured claim payouts.  

Yet a recent Forbes article stated that the owners of one of the largest Broadway theater chains were “shocked to learn that its insurance companies would not cover most of its losses during the COVID-19 pandemic.”

Making people more prepared and resilient is our fundamental goal at the Insurance Information Institute (Triple-I). We seek every opportunity to educate customers about how their insurance works before they suffer an insured loss. Part of this mission is to explain how pandemics are uninsurable. That’s because, unlike covered events, which are limited in time and geography, pandemics simultaneously affect everybody. This is something we’ve explained in briefings to legislators, legal experts and consumer and trade media.

Large-Scale Solutions to Large-Scale Problems

As a result, a consensus is forming around the idea that the federal government is the only entity with the reach and financial resources to help businesses recover from an event the magnitude of a global pandemic. It’s in this spirit that we help inform public discussions about the need for a federal governmental role in protecting the U.S. against future pandemics.

Still, while insurers, regulators and the U.S. government work to deliver relief to business financially affected by future pandemics, we need to stay focused on the present. And to do this, we need to take a quick look into the past:

Insurance has been around for 350 years as a way for households, businesses and communities to recover and rebound after wildfires, hurricanes and other catastrophes. Time and again insurers have been there for their customers because that’s what they do. For example, in the months after 9/11, insurers paid out tens of billions of dollars to keep affected businesses afloat while New York and Washington, DC rebuilt from the rubble.

In 2020, insurers continue to perform their vital societal role, covering insured losses from record hurricane and wildfire seasons, as well as the most destructive civil demonstrations in more than a quarter-century. Insurance simplifies a rather complex risk management process and creates products that deliver simpler ways for people to be more prepared and resilient. Covering these hazards demands immense capital resources.

Questions? Your Policy Documents Have the Answers

Insurance is heavily regulated, and as the Triple-I reaffirmed at September’s annual summit of the National Association of Insurance Commissioners (NAIC), the industry we represent relies on a strong working partnership with regulators and government agencies across America to help make insurance work better for everybody.

One of the tangible results of this partnership is something that anybody can literally hold in their hands: insurance policy documents. Reading these documents to understand what you’re purchasing is an essential part of preparedness.

Business income (interruption) or BI insurance losses caused by a pandemic are not covered because direct physical damage, such as that caused by a hurricane or a fire, is what triggers a standard BI policy. As many courts and academics around the country have stated, neither a virus nor bacteria leads to the direct physical damage of a business’s structure. This contract language is well-established; moreover, every policy is approved by individual states before they are issued to BI policy holders.

We view it as a success when nobody is shocked by what’s covered, and what’s not, under their insurance policies. This is why the Triple-I regularly urges business owners to become familiar with their insurance documents and have regular conversations with their agent or broker to discuss anything they don’t understand.

In an age when we’re all accustomed to just clicking the “terms and conditions” box, ignoring agreements, paradoxically, has become something everybody can agree with. Social scientists consider this to be a form of cognitive dissonance: We know we should read our insurance policies, and yet few of us do. This is a behavioral pattern we’re all guilty of and the Triple-I understands there are many demands on a customer’s time.

Which brings us back to an essential point, that insurance companies prioritize their efforts and resources into making sure that everybody knows about the coverage they have and need.

Pandemics are uninsurable because insurers don’t collect premiums to cover business losses due to viruses and other pathogens. There are products available for this purpose, but an overwhelming majority of businesses decline to purchase them. These exclusions and the availability of pandemic insurance is a fact well known by many experienced professionals—notably risk managers and trial attorneys. The Triple-I is willing to work with anybody to make the public better aware of the risks and how to prepare for them.

The next pandemic surely will come. How insurers, their customers, and the federal government respond now will ensure our resources and energies are devoted to saving lives from all the threats the U.S. faces.  

P/C Insurers Remained Profitable In 2020’s First-Half Despite Challenges

Dr. Steven Weisbart

The U.S.’s property/casualty (P/C) insurers turned in a profitable performance in 2020’s first-half even as the industry’s net income dropped 26 percent compared to 2019’s first-half, according to Dr. Steven Weisbart, Chief Economist, Insurance Information Institute (Triple-I).

“The first half of 2020 was by most measures financially successful for insurers writing P/C insurance. Two measures of the industry’s health—revenue and capital—rose in the first half of 2020,” Dr. Weisbart observed, in a commentary he wrote following the release of a report this week by Verisk and the American Property Casualty Insurance Association (APCIA).  P/C insurers write auto, home, and business insurance coverage.

Net income after taxes for P/C insurers was $24.3 billion in the first half of 2020 whereas this same figure stood at $32.8 billion in the first half of 2019. Contributing to that drop was $1.4 billion in realized capital losses on insurer investments in 2020’s first half, a swing from $4.3 billion in realized capital gains a year earlier, Verisk and APCIA found.

The uncertainty within insurance and capital markets due to COVID-19 could be seen in a number of ways, Dr. Weisbart’s commentary noted, as catastrophe-related claim payouts grew in 2020’s first-half, U.S. auto insurers offered to their policyholders pandemic-related premium relief, and the policyholder’s surplus dropped to $772 billion at the end of 2020’s first quarter before rebounding to $826 billion at the end of 2020’s first half.  The policyholders’ surplus is the amount of money remaining after the insurance industry’s cumulative liabilities are subtracted from its assets.

Businesses Large and Small Need to Be Cyber Resilient in a COVID-19 World

By Loretta Worters, Vice President, Media Relations, Triple-I

Advanced Persistent Threat groups and cybercriminals are likely to continue to exploit the COVID-19 pandemic over the coming weeks and months.  Weak and stolen passwords, back doors, applications vulnerabilities, malware and insider threats have been among the most common causes of data breaches in the past.  But according to a recent Willis Towers Watson report new threats include:

  • Phishing, using the subject of coronavirus or COVID-19 as a lure;
  • Malware distribution, using coronavirus or COVID-19-themed lures;
  • Registration of new domain names containing wording related to coronavirus or COVID-19; and
  • Attacks against newly and often rapidly deployed remote access and teleworking infrastructure.

Security breaches have increased by 67% since 2014, yet businesses fail to take the proper precautions.   Ransomware has become big business for “professional” criminals, crippling large and small businesses alike.  But small businesses are especially attractive targets because they have information that cybercriminals want, and they typically lack the security infrastructure of larger businesses. 

A remote workforce due to COVID-19 has made many organizations address issues of remote access and the need for multifactor authentication and virtual private networks (VPNs). But others – less cyber savvy— have left themselves exposed to cyberattacks.

In addition, vishing (via telephone) and smishing (via text message or WhatsApp) attacks have also increased in frequency, and in a work from home environment where colleagues and clients are increasingly connecting via mobile phones, vulnerability increases, according to a new AON Report. Short message attacks will generally seek to redirect a victim to a compromised website in order to harvest user credentials.

According to a recent survey by the Small Business Administration , 88% of small business owners felt their business was vulnerable to a cyber-attack – and that was before the pandemic. Yet many businesses can’t afford professional IT solutions, have limited time to devote to cybersecurity, or don’t know where to begin.

In observance of National Cybersecurity Awareness Month,  Triple-I offers U.S. businesses these seven tips for improving their cybersecurity and averting data breaches:

  1. Understand your cyber risks. Businesses are vulnerable to cyberattacks through hacking, phishing, malware, and other methods. 
  2. Train Staff. Those engaged in cyberattacks find a point of entry into a business’ systems and network. A business’ exposure can be reduced by having and enforcing a computer password policy for its employees.
  3. Keep Software Updated. Businesses should routinely check and upgrade the major software they use.
  4. Create back-up files and store off-site. A business’ files should be backed up either as an external hard drive or on a separate cloud account. Taking these steps are vital to data recovery and the prevention of ransomware. Ransomware is when a cyberattack results in a situation where a business is asked to pay a fee to regain access to its own data.

Insurance Careers Corner: A few minutes with Kristian Ottesen, intern, CNA Brokerage Strategy team

By James Ballot, Senior Advisor, Strategic Communications, Triple-I

It’s an understatement to say that the COVID-19 pandemic has affected all areas of our personal and professional lives. Amid widespread disruption, however, people are finding ways to overcome the distance of “social distancing” and to make remote work seem less, well, remote.

Insurance business summer internships are a vital path for educating students about the industry, and for businesses to evaluate promising recruits. However, lockdowns and other measures to contain the spread of the coronavirus forced many companies to re-evaluate their internship programs. Several organizations have stepped in to ensure continuity of internship programs, including insurance businesses, industry trade groups, and in particular, Gamma Iota Sigma (GIS), a student society with 94 chapters serving more than 5,000 members across North America.

Through their Virtual Internships program GIS worked with dozens of companies to offer essential training and education opportunities through project-based or defined duration remote work. And what these businesses have discovered is that remote internships offer some built-in advantages over on-site work, including access to people who are ready-made to succeed amid disruption, as well as the ability to engage with recruits from a greater diversity of geographic locations, talents and backgrounds.

As part of the Triple-I Blog’s “Insurance Careers Corner” features series, we spoke with student interns about their experiences during summer 2020 and their insurance career journey so far.

Next up is Kristian Ottesen, a senior at Virginia Commonwealth University, where he’s studying underwriting in excess and surplus lines at that institution’s School of Business’s Risk and Insurance Studies Center.

Kristian spent part of the summer of 2020 as part of a three-person team consulting on the impact of COVID-19 for CNA, a major commercial lines carrier.

Triple-I Blog (III): You had an internship lined up before Summer 2020? What happened?

Kristian Ottesen (KO): I was a part-time intern with Allianz Partners in the Spring, which was cancelled after the first day. Other internship opportunities—including one with a regional broker in Richmond were cancelled or put “on hold.”

(III): You’re on track for a career in insurance. When did you decide this was what you wanted, and what are some factors that contributed to this decision?

(KO): I was majoring in Management and Entrepreneurship at VCU’s School of Business. I was urged by some GIS members and alumni to follow my interest into studying RMI (Risk Management/Insurance). I have to say that it’s been the best decision I’ve made in college so far.

(III): How long was your internship with CNA? Tell us a bit about the work you were doing there.

(KO): My internship ran from June through the first week of August. A lot of what I did involved independent research and reading, with the goal of finding data, news and reporting that fed into charting CNA’s strategy for interacting with broker clients during the COVID-19 pandemic. My team [of three interns] submitted research analysis for feedback from our project supervisor.

(III): What skills and knowledge did you pick up along the way—and what insights do you most want to share with others [who are looking into remote internships]?

(KO): Teamwork, of course. Problem-solving and flexibility [learning in the workflow]. My team and I met weekly via Skype; I encountered some unanticipated advantages to remote work, as well as a few serious drawbacks. Perhaps most important was honing my time management and organizational skills: In addition to working with CNA [via the GIS remote internship program], I was doing coursework in financial modeling at VCU and working landscaping to help pay tuition. 

(III): Any key takeaways or advice from this experience that you’d like to share? 

(KO): There’s no substitute for working directly with and learning from people in the industry rather than from textbooks or in a classroom. If you get the opportunity, take it!

Insurers Help Victims Find Freedom from Domestic Violence Through Financial Empowerment

COVID-19 Could Further Impact Intimate Partner Violence Survivors

By Loretta Worters, Vice President – Media Relations, Triple-I

Financial security and access to resources can make all the difference to domestic violence victims when deciding to leave an abusive relationship. And insurance is an important component of financial planning that can help survivors move forward.

Financial abuse is a common tactic used by abusers to gain power and control in a relationship. The forms of financial abuse may be subtle or explicit, but in in general, include tactics to conceal information, limit the victim’s access to assets, or reduce accessibility to the family finances. Financial abuse – along with emotional, physical, and sexual abuse – includes behaviors to intentionally manipulate, intimidate, and threaten the victim in order to entrap that person in the relationship. In some cases, financial abuse is present throughout the relationship and in other cases financial abuse becomes present when the survivor is attempting to leave or has left the relationship.

Repercussions from the pandemic – layoffs, loss of income, living with abusers due to stay-at-home orders, restricted travel and closures of key community resources – are likely to dramatically increase the incidence of domestic violence, which may further hamper a victim from leaving an abusive situation. 

Survivors struggling to get back on their feet may also be forced to return to their abuser.  That’s why it’s so important survivors understand how insurance works and what a critical role it can play in gaining financial freedom and economic self-sufficiency.

In support of Domestic Violence Awareness Month, the I.I.I. offers financial strategies to protect victims before and after leaving an abusive relationship. They include securing financial records, knowing where the victim stands financially, building a financial safety net, making necessary changes to their insurance policies and maintaining good credit. 

The National Coalition Against Domestic Violence (NCADV) reports that 10 million people are physically abused by an intimate partner each year, and 20,000 calls are placed to domestic violence hotlines each day. In addition, 85 percent of women who leave an abusive relationship return because of their economic dependence on their abusers. Furthermore, the degree of women’s economic dependence on an abuser is associated with the severity of the abuse they suffer.

“Home is often times a dangerous place for survivors of domestic violence, and COVID-19 exacerbates the circumstances, due to the abusers’ ability to further control,” said Ruth Glenn, president and CEO of the NCADV. “Tactics abusers use include ruining the credit of their victim as well as financial and digital abuse, such as stimulus funds being co-opted by abusers to an increase in domestic online harassment,” she said. 

Experts agree that domestic online harassment can come in many forms, from impersonating a victim by email in order to sabotage her work, to controlling the influx of information about the pandemic to make her more fearful and reliant on the abuser.

The Allstate Foundation’s domestic violence initiative has been committed to ending domestic violence through financial empowerment, providing survivors with the education and resources needed to achieve their potential again and equip young people with the information and confidence they need to help prevent unhealthy relationships before they start.  This year the Foundation contributed $500,000 to help the National Network to End Domestic Violence support more than 100 local domestic violence organizations. The Foundation also provided funding for the National Domestic Violence Hotline to enable remote-working technology and has worked with these organizations who are urging Congress to pass a COVID-19 relief package that addresses the housing, economic, physical and mental health needs of survivors of domestic and sexual violence and the advocates on the frontlines that need additional resources to ensure the safety of survivors and their staff.

“One of the most powerful methods of keeping a survivor trapped in an abusive relationship is not being able to support themselves financially,” Glenn explained. “That’s why insurance and financial education are so important,” she said.  “Education can save a life.”

Mitigation Matters – and Hurricane Sally Proved It

 A FORTIFIED roof (left) sustained no damage from Hurricane Sally, the neighboring house (right) did not fare as well.

The FORTIFIED construction certification was developed by the Insurance Institute for Business and Home Safety (IBHS) to protect homes against severe weather. In this post Fred Malik, managing director, FORTIFIED, and Chuck Miccolis, managing director, Commercial – IBHS, talk about how the system held up in Alabama against Hurricane Sally.

In 2004, Hurricane Ivan slammed into Alabama causing widespread devastation. Unwilling to let the same damage happen again, thousands of homeowners and commercial property owners have turned to IBHS’s FORTIFIED program to protect their properties and prepare for the next big storm. 

Last month, the ‘next big storm’ came. Exactly sixteen years since Hurricane Ivan made landfall, Hurricane Sally crawled its way onto the Alabama coast. The Category 2 storm subjected homes and businesses to more than 8 hours of relentless winds. While the aftermath of Sally’s landfall vividly showed too many buildings are still not built as strong as they could be, those in the area built to the FORTIFIED standard provide hope for a more resilient future.

More than 16,000 FORTIFIED properties were put to the test and they demonstrated homes and businesses can be built better. In the days following Sally’s landfall, IBHS conducted field assessments across coastal Alabama to better understand building performance, including dozens of FORTIFIED properties. To date, indications are that more than 90% of the thousands of FORTIFIED buildings had zero to minor cosmetic damage. As a wind standard, FORTIFIED performed to its design.

The evidence is clear driving through Baldwin County, Alabama – home and business owners who had a FORTIFIED Roof didn’t need a blue tarp, didn’t have significant water intrusion through the roof, and businesses were able to re-open as soon as flooding abated and power was restored. Most observed damage was only cosmetic, and disruption was minimized, meaning those who made the decision to strengthen their properties aren’t dealing with the headache of rebuilding. Because FORTIFIED provides layers of protection, it stopped the cascade of damage before it started.

Some FORTIFIED homeowners were even able to offer refuge for neighbors in need.  Having benefited from local incentives to build stronger, some FORTIFIED homeowners in Orange Beach experienced no damage from wind or wind-driven rain, while neighbors were forced to make repairs as well as tear out and throw away much of the contents of their homes.

Another poignant example took place at the Lodge at Gulf State Park, which had been completely destroyed by Hurricane Ivan. Determined to overcome the vulnerabilities Ivan had so devastatingly exposed, the property owners wanted to be a leader in demonstrating to the community how to build back stronger. They turned to the FORTIFIED program.

The hotel was rebuilt in 2019 to the FORTIFIED standards, and IBHS verified the construction process and material selection complied with those standards. Evaluators, trained by IBHS, guided construction and design teams to minimize flaws that otherwise may have gone unnoticed. As a result, when Hurricane Sally’s eyewall passed directly over the Lodge, it not only continued operations, it also housed employees who did not have FORTIFIED homes. Additionally, many media outlets, including The Weather Channels, chose to stay at the lodge to cover the storm and, some unknowingly, benefitted from the protection of FORTIFIED to report on the hurricane, perhaps prompting FEMA Administrator Pete Gaynor to emphasize “mitigation works.”

Continuing the post-storm research, IBHS will develop an analysis of key factors influencing the performance of these FORTIFIED structures. Preventing avoidable damage is one of IBHS’s three imperatives, and Sally demonstrated how FORTIFIED achieves that mission. For more information, go to fortified.org.

Hurricane Delta insured losses estimated at up to $3 billion

Flood waters from Hurricane Delta surround structures destroyed by Hurricane Laura on October 10, 2020 in Creole, Louisiana. Hurricane Delta made landfall near Creole as a Category 2 storm initially leaving some 300,000 customers without power. (Photo by Mario Tama/Getty Images)

Hurricane Delta made landfall in Creole, Louisiana, on October 9 as a Category 2 storm with 101 mph sustained winds and a 9.3-foot storm surge. Landfall in Cameron Parish was within 13 miles of where Category 4 Hurricane Laura made landfall in late August. Delta knocked out power to over 500,000 customers in Louisiana (a quarter of the state’s homes), plus another 300,000 in parts of east Texas and western Mississippi. It was a record-setting 10th continental U.S. landfall of a named storm during a single hurricane season and record-tying fifth hurricane continental U.S. landfall in a season.

Similar paths by Hurricanes Laura and Delta in Louisiana triggered the state law that stipulates that policyholders are not required to pay a hurricane deductible twice in the same storm season. State Insurance Commissioner Jim Donelon said that for people who did not exhaust their deductible during Laura, the remainder would apply to Delta only if the unused amount is larger than the standard all-perils deductible. It is not known yet how many people suffered damage from Delta.

Insured loss estimates for Hurricane Delta range from $1 billion to as high as $3 billion, according to catastrophe risk modelling specialist AIR Worldwide. The company warns of the potential for loss increase due to hurricane Delta’s impacts coming so soon after hurricane Laura’s. Karen Clark & Company’s estimate that onshore insured losses will be about $1.25 billion and CoreLogic estimates that onshore and offshore insurance market losses from Delta will be between $1.5 billion and $2.7 billion.

During a live interview on The Weather Channel’s Weather Underground on Monday, October 12, the Triple-I’s Mark Friedlander discussed property losses for Louisianans who were impacted by hurricanes Delta and Laura. He also provided claims-filing tips.

The Future of American Insurance and Reinsurance Releases a Digital Business Interruption Insurance Explainer

Future of American Insurance and Reinsurance (FAIR) has released a new interactive tool to help showcase the need for a federal solution to pandemic relief. The Business Interruption Insurance “explainer” utilizes digital storytelling techniques to help clarify information about this complex topic.

The digital explainer complements the FAIR campaign’s other recently-released digital assets, including a video overview of BI and pandemics, and a primer deck that provides quantitative backing to the assertion that pandemics cannot be privately insured. 

As trial attorneys attempt to retroactively force uninsurable pandemic coverage in business interruption insurance contracts, this tool is designed to show what business interruption insurance covers, how surplus helps pay for covered perils such as hurricanes and wildfires, how insurers have stepped up to help policyholders, and the need for a federal solution to the pandemic.

ABOUT FAIR
FAIR is an initiative of the Insurance Information Institute and its member companies whose mission is to ensure fairness for all customers and safeguard the industry’s longstanding role as a pillar of economic growth and stability.